Part 1

The Pensions Regulator

Contribution notices where avoidance of employer debt

Section 38 contribution notice: meaning of “employer resources test”
38E
1
For the purposes of section 38 the employer resources test is met in relation to an act or failure to act if the Regulator is of the opinion that—
a
the act or failure reduced the value of the resources of the employer, and
b
that reduction was a material reduction relative to the estimated section 75 debt in relation to the scheme.
2
For the purposes of this section—
a
what constitutes the resources of the employer is to be determined in accordance with regulations;
b
the value of the resources of the employer is to be determined, calculated and verified in a prescribed manner.
3
In this section the “
estimated section 75 debt
” means the amount which the Regulator estimates to be the amount of the debt which would become due from the employer to the trustees or managers of the scheme under section 75 of the Pensions Act 1995 (deficiencies in the scheme assets) if—
a
section 75(2) applied, and
b
the time designated by the trustees or managers of the scheme for the purposes of section 75(2) were the relevant time.
4
When calculating the estimated section 75 debt under subsection (3), the amount of any debt due at the relevant time from the employer under section 75 of the Pensions Act 1995 is to be disregarded.
5
In this section “
the relevant time
” means—
a
in a case where the act or failure to act forms part of a series of acts or failures to act, the time immediately before the first of the acts occurred or the first of the failures to act first occurred;
b
in any other case, the time immediately before the act occurred or the failure to act first occurred.
Pt. 1 applied in part (with modifications) (20.7.2005 for specified purposes, 1.9.2005 for specified purposes, 5.12.2005 for specified purposes) by The Financial Assistance Scheme Regulations 2005 (S.I. 2005/1986), regs. 1(1), 4, Sch. 1 Pt. 1 (as amended (17.7.2008) by The Financial Assistance Scheme (Miscellaneous Amendments) Regulations 2008 (S.I. 2008/1903), regs. 1, 5(2), 13; (10.7.2009) by The Financial Assistance Scheme (Miscellaneous Provisions) Regulations 2009 (S.I. 2009/1851), regs. 1, 5, 18; (2.4.2010) by The Financial Assistance Scheme (Miscellaneous Amendments) Regulations 2010 (S.I. 2010/1149), regs. 1, 5, 15)
Ss. 38E, 38F inserted (31.5.2021 for specified purposes, 1.10.2021 in so far as not already in force) by Pension Schemes Act 2021 (c. 1), ss. 103(4), 131(1); S.I. 2021/620, reg. 2(1)(a); S.I. 2021/950, reg. 2(5)(a) (with reg. 3(1)(2))