Peterson v. Jensen, 2000 U.S. App. LEXIS 3107 (9^th Cir. Feb. 28, 2000) (unpublished)-This court affirmed the district court’s grant of summary judgment against Peterson’s ERISA claim for benefits under an alleged plan. Attorney Jensen, a solo practitioner, employed Peterson as a law clerk and later as an associate. In 1991, Jensen opened a Simplified Employee Pension-Individual Retirement Account (SEP-IRA) with Dean Witter.  There was no evidence that Jensen contributed or intended to contribute to the SEP-IRAs of his employees.

Peterson argued that by opening the SEP-IRA account and signing a Dean Witter Subscription Agreement, Jensen established a Simplified Employee Pension plan under section 408(k) of the Internal Revenue Code. Peterson alleges that he was therefore a "participant or beneficiary" of a "pension plan" and that Jensen's failure to contribute to Peterson's "pension plan" violated ERISA.

This court found that the fact that Jensen opened a SEP-IRA account does not by itself demonstrate that he established a SEP plan for the benefit of his employees.  Furthermore, Jensen failed to comply with several requirements of I.R.C. § 408(k).  Most notably Jensen did not comply with the "definite written allocation formula" requirement. I.R.C. § 408(k)(5). Because there was no evidence that a SEP plan existed, Peterson's ERISA claim failed.