ERISA’s regulations expressly provide that employee contributions withheld from an employee’s wages are “plan assets” even if the employer never remits the contributions to its employee benefit plan.  Yet, there is no corresponding provision relating to unpaid employer contributions.  Courts generally hold that unpaid employer contributions are not plan assets unless clear language in the plan indicates otherwise, such as provisions indicating that employer contributions are plan assets when “due” or “owing.”  Nevertheless, the employer may still be liable to the benefit plan for the unpaid contributions under contract law depending upon how the plan provision is worded.  The 11th Circuit recently reaffirmed this proposition in an unpublished case where a participant in the employer’s 401(k) plan sued for breach of fiduciary duty because the employer used its employer contribution funds to pay its payroll taxes rather than remitting the funds to the 401(k) plan.  The court held that there was no breach of fiduciary duty because the unpaid employer contributions were not yet plan assets.  The court cited binding precedent within the circuit as well as similar authority in the 2nd, 8th, 9th, and 11th Circuits supporting the court’s conclusion that, absent clear and specific language to the contrary, the unpaid employer contributions were not plan assets until actually remitted to the 401(k) plan.  Consequently, plan sponsors should review their plan documents for provisions requiring employer contributions to be remitted to the plan.  Pantoja v. Edward Zengel & Sons Express, Inc., No. 12-10036, 2012 WL 6117886 (11th Cir. Dec. 11, 2012) (unpublished opinion).