IRS Issues Additional Guidance Regarding Certain Plan Amendment Deadlines:

In the August 2022 edition of The Speed Reader, I summarized IRS Notice 2022-33. That guidance generally extended the plan amendment deadline for the Setting Every Community Up for Retirement Enhancement Act of 2019 (the “SECURE Act”), the Bipartisan American Miners Act of 2019 (the “Miners Act”), and the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). I noted, however, that Notice 2022-33 did not extend the amendment deadline for the CARES Act’s loan and distribution provisions, which Notice 2022-33 provided as the last day of the plan year beginning on or after January 1, 2022.  
 
On September 26, 2022, the IRS published additional guidance on that subject. Notice 2022-45 (the “Notice”) addresses the amendment deadline for the CARES Act’s loan and distribution provisions, as well as provisions of the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (the “Relief Act”). (The Relief Act provides favorable tax treatment to qualified individuals with respect to qualified disaster distributions from certain retirement plans.) Per the Notice, the amendment deadline for a qualified retirement plan or a section 403(b) plan that is not a governmental plan is December 31, 2025.
 
Also under the Notice:

• The plan amendment deadline for a qualified governmental plan is 90 days after the close of the third regular legislative session of the legislative body with the authority to amend the plan that begins after December 31, 2023.
• The plan amendment deadline for a governmental plan under section 457(b) of the Internal Revenue Code is the later of: (1) 90 days after the close of the third regular legislative session of the legislative body with the authority to amend the plan that begins after December 31, 2023; or (2) if applicable, the first day of the first plan year beginning more than 180 days after the date of notification by the IRS that the plan was administered in a manner that is inconsistent with the requirements of section 457(b).

The Notice also helpfully states that “The deadlines set forth in this notice are the same as the deadlines set forth in Notice 2022-33. Accordingly, it is anticipated that amendments to reflect the CARES Act and Relief Act as described in this notice, as well as the SECURE Act, Miners Act, and CARES Act amendments described in Notice 2022-33, may be adopted on a single date.” Employers should discuss with their ERISA counsel whether it would be advisable to amend their plans well before the Notice’s applicable deadline, however.