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By: Kathy D. Aslinger, Esq., William E. Mason, Esq., and Brittany Brent Smith, Esq.
Kennerly, Montgomery & Finley, P.C.
Knoxville, Tennessee

Utilities, airports, hospitals, nursing homes, charter schools, and similar institutions are commonly organized in corporate form and operate like businesses.  Most are governed by a Board, the seats on which are filled by nomination or election by the remaining members of the Board.  However, many of these organizations perform governmental functions, are closely associated with local governments, and have long been treated as agencies or instrumentalities of political subdivisions.  The Internal Revenue Service (“IRS”), working with the Department of Labor (“DOL”) and the Pension Benefit Guaranty Corporation (“PBGC”), has developed draft regulations that, at least in the retirement area, would create a brighter line between entities that the IRS considers to be private and those that will be treated as governmental entities exempt from many IRS retirement plan qualification rules.  Some organizations that currently enjoy governmental status as an agency or instrumentality of a political subdivision may find it hard to fit within the proposed test the IRS recently set forth in its Advance Notice of Proposed Rulemaking on the Determination of Governmental Plan Status (“ANPRM”) view full article please click here.

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