00-1109 Matz v. Household International Tax Reduction Investment Plan

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“We do not consider a position in an amicus brief to be more deserving of Chevron deference than a tariff classification ruling. Upon reading Mead, we find that a litigation position in an amicus brief, perhaps just as agency interpretations of statutes contained in formats such as opinion letters, policy statements, agency manuals, and enforcement guidelines, see id. at 2175, are entitled to respect only to the extent that those interpretations have the power to persuade pursuant to Skidmore.”

“Therefore, since we are not bound by the IRS’ position under Chevron, any deference we afford it under Skidmore depends on its thoroughness, validity, consistency, and persuasiveness. As noted, in our first opinion, although we found the IRS’ position reasonable under Chevron, we also found it unpersuasive… We agree with the Plan that counting vested participants ‘would further neither of these purposes.'[Matz I, 227 F.3d at 975] ‘Vested participants do not need further protection for their pension benefits and do not benefit from a finding of partial termination. Their benefits, by virtue of vesting, are nonforfeitable. The employer gains nothing either. No monies revert back to it because the benefits are vested and non[ ]forfeitable.’ Id. We agreed with the notion voiced in Morales v. Pan Am. Life Ins. Co., 718 F. Supp. 1297 (E.D. La. 1989) and Weil that perhaps only non- vested participants ought to be counted, although neither court so held. Since we indicated that if we were writing on a blank slate we would have held differently, we now adopt the rule that only non-vested participants should be counted in determining whether partial termination of a pension plan has occurred.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., On Remand From The United States Supreme Court, Bauer, J.