38-769

38-769. Maximum retirement benefits;
termination; definitions

A. Notwithstanding any other provision of this article, except as provided in
subsection C of this section, the employer provided portion of a member's annual benefit
payable in the form of a straight life annuity, at any time within a limitation year,
shall not exceed one hundred sixty thousand dollars or a larger amount that is effective
as of January 1 of each calendar year, is prescribed by the board and is due to any cost
of living adjustment announced by the United States secretary of the treasury pursuant to
section 415(d) of the internal revenue code. The board shall increase the amount
pursuant to this subsection as of the effective date of the increase as prescribed by the
United States secretary of the treasury. Benefit increases provided in this section
resulting from the increase in the limitations of section 415(b) of the internal revenue
code as amended by the economic growth and tax relief reconciliation act of 2001 shall be
provided to all current and former members who have benefits that are limited by section
415(b) of the internal revenue code and who have an accrued benefit under ASRS
immediately before July 1, 2001, other than an accrued benefit resulting from a benefit
increase solely as a result of the increases provided by this section resulting from the
increase in the limitations of section 415(b) of the internal revenue code as amended by
the economic growth and tax relief reconciliation act of 2001.

B. Notwithstanding the limitations of subsection A of this section, the benefits
payable to a member are deemed not to exceed the limitations determined under subsection
A of this section if the retirement benefits payable to the member under this article do
not exceed ten thousand dollars for the limitation year and if an employer has not at any
time maintained a defined contribution plan in which the member has participated.

C. The limitations determined under subsection A of this section are subject to the
following adjustments:

1. If a member has less than ten years of membership in ASRS, the maximum dollar
limitation determined under subsection A of this section shall be multiplied by a
fraction, the numerator of which is the number of years, or partial years, of membership
in ASRS and the denominator of which is ten. The reduction provided in this paragraph
also applies to the ten thousand dollar floor limitation provided in subsection B of this
section, except that the reduction applies to years of service with an employer rather
than to years of membership in ASRS. The reduction in this paragraph does not reduce the
limitations determined under subsection A of this section to an amount less than
one-tenth of the limitations as determined without regard to this paragraph.

2. If a member's annual benefit commences before the member attains sixty-two years
of age, the defined benefit dollar limitation applicable to the member at the earlier age
is an annual benefit payable in the form of a straight life annuity beginning at the
earlier age that is the actuarial equivalent of the defined benefit dollar limitation
applicable to the member at age sixty-two and that is adjusted under paragraph 1 of this
subsection, if required. The defined benefit dollar limitation applicable at an age
before age sixty-two is determined as the lesser of:

(a) The actuarial equivalent at that age of the defined benefit dollar limitation
computed using the interest rate specified by the board in section 38-711, paragraph 2
and the mortality table or other tabular factors prescribed in paragraph 5 of this
subsection.

(b) The actuarial equivalent at that age of the defined benefit dollar limitation
computed using a five per cent interest rate and the applicable mortality table
prescribed in paragraph 5 of this subsection. Any decrease in the defined benefit dollar
limitation determined in accordance with this paragraph shall not reflect a mortality
decrement if benefits are not forfeited on the death of the member. If any benefits are
forfeited on death, the full mortality decrement is taken into account.

3. If a member's annual benefit commences after sixty-five years of age, the
limitation determined under subsection A of this section applicable to the member at the
later age is the annual benefit payable in the form of a straight life annuity beginning
at the later age that is actuarially equivalent to the defined benefit dollar limitation
applicable to the participant at age sixty-five and that is adjusted under paragraph 1 of
this subsection, if required. The actuarial equivalent of the defined benefit dollar
limitation applicable at an age after age sixty-five is determined as the lesser of:

(a) The actuarial equivalent at that age of the defined benefit dollar limitation
computed using the interest rate specified by the board as provided in section 38-711,
paragraph 2 and the mortality table or other tabular factors prescribed in paragraph 5 of
this subsection.

(b) The actuarial equivalent at that age of the defined benefit dollar limitation
computed using a five per cent interest rate assumption and the applicable mortality
table prescribed in paragraph 5 of this subsection. For the purposes of this subdivision,
mortality between age sixty-five and the age at which benefits commence shall be ignored.

4. If the member's benefit is paid in a form other than a straight life annuity,
the benefit paid may not exceed the actuarial equivalent of the maximum annual benefit
payable as a straight life annuity disregarding the portion of any joint and survivor
annuity that constitutes a qualified joint and survivor annuity as defined in section 417
of the internal revenue code. Effective for plan years beginning from and after June 30,
2004, actuarial equivalency under this paragraph shall be determined by the use of an
interest rate assumption equal to one of the following rates:

(a) For benefits paid under ASRS in a form to which section 417(e)(3) of the
internal revenue code would apply if that section of the internal revenue code were
applicable to ASRS, the greater of:

(i) Five and one-half per cent a year.

(ii) The rate that provides a benefit of not more than one hundred five per cent of
the benefit that would be provided if the applicable interest rate, as defined in section
417(e)(3) of the internal revenue code, were the interest rate assumption.

(iii) The rate specified by the board as provided in section 38-711, paragraph 2.

(b) For benefits paid under ASRS in a form to which section 417(e)(3) of the
internal revenue code does not apply if that section of the internal revenue code were
applicable to ASRS, five per cent per year.

In the case of any member or beneficiary receiving a distribution from and after December
31, 2003 but before January 1, 2005, the amount payable under any form of benefit subject
to adjustment under this paragraph shall not, solely by reason of the interest rate
assumptions contained in this paragraph, be less than the amount that would have been
payable had the amount payable been determined using the applicable interest rate in
effect as of the last day of the plan year beginning July 1, 2003.

5. For the purposes of adjusting any benefit or limitation under paragraph 2, 3 or
4 of this subsection, the board shall use the mortality table prescribed by the United
States secretary of the treasury as required by section 415(b)(2)(E)(v) of the internal
revenue code, which, effective for distributions with annuity starting dates from and
after December 30, 2002, shall be the mortality table published by the internal revenue
service in revenue ruling 2001-62, as modified by the internal revenue service in revenue
ruling 2007-67, until later changed or modified by the internal revenue service.

D. Subsection C, paragraphs 1 and 2 of this section do not apply to income received
from ASRS as a pension, annuity or similar allowance as a result of the recipient
becoming disabled by personal injury or sickness or to amounts received from ASRS by
beneficiaries, survivors or the estate of a member as a result of the death of the
member.

E. Notwithstanding any other provision of this section, the annual benefit payable
under this article may be reduced to the extent necessary, as determined by the board, to
prevent disqualification of ASRS under section 415 of the internal revenue code that
imposes additional limitations on the annual benefits payable to members who also may be
participating in another tax qualified pension or savings plan of this state. An
employer shall not provide employee retirement or deferred benefits if the benefits
authorized by this section and as required by federal law result in the failure of ASRS
to meet federal qualification standards as applied to public pension plans. The board
shall advise affected members of any additional information concerning their annual
benefits required by this subsection. All benefits payable pursuant to this subsection
shall comply with the limitations of benefits contained in section 415 of the internal
revenue code and the final treasury regulations issued under that
section. Notwithstanding any provision of this article to the contrary, if the annual
benefits within the meaning of section 415 of the internal revenue code are exceeded for
any member, ASRS may only correct the excess pursuant to the employee plans compliance
resolution system prescribed in internal revenue service revenue procedure 2008-50 or any
future guidance by the internal revenue service, including the preamble of the final
treasury regulations issued under section 415 of the internal revenue code.

F. If the maximum amount of benefit allowed under section 415 of the internal
revenue code is increased after the commencement date of a member's benefit due to any
cost of living adjustment announced by the United States secretary of the treasury
pursuant to the provisions of section 415(d) of the internal revenue code, the amount of
the monthly benefit payable under ASRS to a member whose benefit is restricted due to the
provisions of section 415(d) of the internal revenue code shall be increased by the board
as of the date prescribed by the United States secretary of the treasury on which the
increase shall become effective. The increase shall reflect the increase in the amount
of retirement income that may be payable under this article as a result of the cost of
living adjustment.

G. In determining the adjustments to the defined benefit dollar limitation
authorized by subsection A of this section, the board shall prescribe a larger defined
benefit dollar limitation if prescribed by the United States secretary of the treasury
pursuant to section 415(d) of the internal revenue code. An adjustment to the defined
benefit dollar limitation prescribed in subsection A of this section is not effective
before the first calendar year for which the United States secretary of the treasury
publishes the adjustment. After it is prescribed by the board, the new defined benefit
dollar limitation applies to the limitation year ending with or within the calendar year
for which the secretary of the treasury makes the adjustment.

H. For the purposes of the limitations prescribed by this section, all member and
employer contributions made to ASRS to provide a member benefits pursuant to section
38-771 or 38-771.01 and all member contributions that are not treated as picked up by the
employer under section 414(h)(2) of the internal revenue code shall be treated as made to
a separate defined contribution plan.

I. On termination of ASRS the accrued benefit of each member is, as of the date of
termination, fully vested and nonforfeitable.

J. If ASRS terminates, the benefit of any highly compensated employee as defined in
section 414(q) of the internal revenue code and any highly compensated former employee is
limited to a benefit that is nondiscriminatory under section 401(a)(4) of the internal
revenue code and as follows:

1. Benefits distributed to any of the twenty-five active and former highly
compensated employees with the greatest compensation in the current or any prior fiscal
year are restricted so that the annual payments are no greater than an amount equal to
the payment that would be made on behalf of the member under a straight life annuity that
is the actuarial equivalent of the sum of the member's accrued benefit, the member's
other benefits under ASRS, excluding a social security supplement as defined in 26 Code
of Federal Regulations section 1.411(a)-7(C)(4)(ii), and the amount the member is
entitled to receive under a social security supplement.

2. Paragraph 1 of this subsection does not apply if either:

(a) After payment of the benefit to a member described in paragraph 1 of this
subsection, the value of ASRS assets equals or exceeds one hundred ten per cent of the
value of the current liabilities, as defined in section 412(l)(7) of the internal revenue
code, of ASRS.

(b) The value of the benefits for a member described in paragraph 1 of this
subsection is less than one per cent of the value of the current liabilities, as defined
in section 412(l)(7) of the internal revenue code, of ASRS before distribution.

(c) The value of the benefits payable by ASRS to a member described in paragraph 1
of this subsection does not exceed three thousand five hundred dollars.

K. For the purposes of subsection J of this section, "benefit" includes loans in
excess of the amount prescribed in section 72(p)(2)(A) of the internal revenue code, any
periodic income, any withdrawal values payable to a living member and any death benefits
not provided for by insurance on the member's life.

L. On retirement of a member who was a retired member, who resumed active
membership and who subsequently retires, the limitations of this section in effect on the
member's subsequent retirement apply to the member's retirement benefit payable as
recomputed pursuant to section 38-766. In addition, the sum of the present value of the
member's recomputed retirement benefits plus the present value of the benefits the member
received during the member's prior retirement shall not exceed the present value of the
limitations in effect on the member's subsequent retirement. The limitations prescribed
in this subsection shall not reduce a member's retirement benefit below the retirement
benefit the member was receiving before the member resumed active membership. For the
purposes of determining present value under this subsection, the board shall use the
actuarial equivalent assumptions provided in section 38-711, paragraph 2.

M. For the purposes of this section:

1. The following adjustments shall be made to the definition of compensation
prescribed in subsection O of this section:

(a) Compensation shall be adjusted for the types of compensation that are
prescribed in this paragraph and that are paid after a member's severance from employment
with an employer. Amounts described in subdivisions (b), (c) and (d) may be included only
as compensation to the extent the amounts are paid by the later of two and one-half
months after severance from employment or by the end of the limitation year that includes
the date of the severance from employment. Any other payment of compensation paid after
severance of employment that is not described in the types of compensation prescribed in
this paragraph is not considered compensation for purposes of this section, even if
payment is made within the time period prescribed in this subdivision.

(b) Compensation shall include regular pay after severance of employment if the
payment is regular compensation for services performed during the member's regular
working hours or compensation for services performed outside the member's regular working
hours, such as overtime or shift differential, commission, bonus or other similar
payments, and the payment would have been paid to the member before a severance from
employment if the member had continued in employment with the employer.

(c) Leave cash-outs shall be included in compensation if those amounts would have
been included in compensation if they were paid before the member's severance from
employment and the amounts are payment for unused accrued bona fide sick, vacation or
other leave, but only if the member would have been able to use the leave if employment
had continued.

(d) Deferred compensation shall be included in compensation if the compensation
would have been included in compensation if it had been paid before the member's
severance from employment and the compensation is received pursuant to a nonqualified
unfunded deferred compensation plan, but only if the payment would have been paid at the
same time if the member had continued in employment with the employer and only to the
extent that the payment is includable in the member's gross income.

(e) Compensation does include payments to an individual who does not currently
perform services for an employer by reason of qualified military service as defined in
section 414(u)(5) of the internal revenue code to the extent those payments do not exceed
the amounts the individual would have received if the individual had continued to perform
services for the employer rather than entering qualified military service.

(f) Compensation does not include compensation paid to a member who is permanently
and totally disabled as defined in section 22(e)(3) of the internal revenue code.

(g) Compensation shall include amounts that are includable in the gross income of a
member as required by section 409A or section 457(f)(1)(A) of the internal revenue code
or because the amounts are constructively received by the member.

2. Compensation for a limitation year shall not include amounts earned but not paid
during the limitation year solely because of the timing of pay periods and pay dates.

3. Payments awarded by an administrative agency or court or pursuant to a bona fide
agreement by an employer to compensate a member for lost wages are compensation for the
limitation year to which the back pay relates, but only to the extent the payments
represent wages and compensation that would otherwise be included in compensation under
this section.

N. The definition of limitation year prescribed in subsection O of this section may
only be changed by an amendment to subsection O, except that if ASRS is terminated
effective as of a date other than the last day of the limitation year, the termination
shall be treated as if this section has been amended to change the definition of
limitation year.

O. For the purposes of this section:

1. Annual additions shall be determined as provided in section 38-747, subsection
O.

2. "Annual benefit" means a benefit, including any portion of a member's retirement
benefit payable to an alternate payee under a qualified domestic relations order that
satisfies the requirements prescribed in section 414(p)(1)(A)(i) of the internal revenue
code and section 38-773, payable annually in the form of a straight life annuity,
disregarding the portion of a joint and survivor annuity that constitutes a qualified
joint and survivor annuity as defined in section 417 of the internal revenue code, with
no ancillary or incidental benefits or rollover contributions and excluding any portion
of the benefit derived from member contributions or other contributions that are treated
as a separate defined contribution plan under section 415 of the internal revenue code
but including any of those contributions that are picked up by the employer under section
414(h) of the internal revenue code, or that otherwise are not treated as a separate
defined contribution plan. If the benefit is payable in another form, the determination
as to whether the limitation described in subsection A of this section has been satisfied
shall be made by the board by adjusting the benefit so that it is actuarially equivalent
to the annual benefit described in this paragraph in accordance with the regulations
promulgated by the United States secretary of the treasury. In addition, for determining
the annual benefit attributable to member contributions, the factors described in section
411(c)(2)(B) of the internal revenue code and the regulations promulgated under the
internal revenue code shall be used by the board regardless of whether section 411 of the
internal revenue code applies to ASRS. The factors described in section 411(c)(2)(B) of
the internal revenue code shall be those factors described under section 417(e)(3) of the
internal revenue code and determined on the basis of the 417(e) mortality table and an
interest rate as prescribed in subsection C, paragraphs 4 and 5 of this section.

3. "Compensation" means the member's earned income, wages, salaries, fees for
professional service and other amounts received for personal services actually rendered
in the course of employment with the employer and includes amounts described in sections
104(a)(3) and 105(a) of the internal revenue code, but only to the extent that these
amounts are includable in the gross income of the member. Compensation also includes any
elective deferral as defined in section 402(g)(3) of the internal revenue code and any
amount that is contributed or deferred by an employer at the election of a member and
that is not includable in the gross income of the member by reason of section 125,
132(f)(4) or 457 of the internal revenue code. Compensation does not mean:

(a) Employer contributions to a plan of deferred compensation to the extent the
contributions are not included in the gross income of the employee for the taxable year
in which contributed and any distributions from a plan of deferred compensation,
regardless of whether the amounts are includable in gross income of the employee when
distributed, except that any amount received by a member pursuant to an unfunded
nonqualified plan may be considered as compensation for the purposes of this section in
the year the amounts are includable in the gross income of the member under the internal
revenue code.

(b) Other amounts that receive special tax benefits, such as premiums for group
term life insurance, but only to the extent that the premiums are not includable in the
gross income of the employee, qualified transportation fringe benefits as defined in
section 132 of the internal revenue code and, effective for plan years beginning from and
after December 31, 1987, any amounts under section 125 of the internal revenue code that
are not available to a participant in cash in lieu of group health coverage because the
member is unable to certify that the member has other health coverage.

4. "Defined benefit dollar limitation" means the dollar limitation determined under
subsection A of this section.

5. "Defined benefit plan" has the same meaning prescribed in section 414(j) of the
internal revenue code.

6. "Defined contribution plan" has the same meaning prescribed in section 414(i) of
the internal revenue code.

7. "Limitation year" and "years of service" means the fiscal year.