IRS Extends Date for Certain Plan Amendments:

On August 3, 2022, the IRS published Notice 2022-33 (the “Notice”). The Notice extends the deadlines for amending a retirement plan to reflect certain provisions of  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”).

Under previous IRS guidance, amendments for the above-referenced laws had to be executed by the end of plans’ 2022 plan year (for non-governmental plans) and by the end of plans’ 2024 plan year (for governmental plans).  Under the Notice, the new deadlines are as follows:

• Non-governmental qualified plans, and section 403(b) plans that are not sponsored by public schools:  December 31, 2025 (for the SECURE Act, the Miners Act, and for the CARES Act’s required minimum distribution relief).
• Section 403(b) plans that are sponsored by public schools:  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 (for the SECURE Act and the Miner’s Act); December 31, 2025 (for the CARES Act’s required minimum distribution relief).
• Governmental qualified plans:  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 (for the SECURE Act, the Miner’s Act, and for the CARES Act’s required minimum distribution relief).
• Governmental 457(b) Plans:  The later of (i) 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 (ii) 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 Internal Revenue Code section 457(b) (for the SECURE Act, the Miner’s Act, and for the CARES Act’s required minimum distribution relief).

The Notice does not extend the amendment deadline for CARES Act’s loan and distribution provisions, which is the last day of the plan year beginning on or after January 1, 2022. Therefore, absent additional IRS guidance in that regard, non-governmental qualified retirement plans that have a calendar-year plan year and implemented the CARES Act’s loan and/or distribution provisions still need to adopt amendments by December 31, 2022. Another interesting point is that the December 31, 2025 date applies irrespective of the plan year or the plan sponsor’s tax year. Also, the Notice does not apply to tax-exempt organizations’ 457(b) plans.

Under the Notice, plan amendments must apply retroactively to the effective date of the applicable law’s or regulation’s provisions (or, in the case of an amendment that is not legally-required, the effective date specified by the plan). Also, the plan must be operated as if the amendment were in effect during the period beginning on the amendment’s retroactive effective date.

For individually-designed retirement plans, amendment deadlines for the above-referenced laws and for other law changes will continue to depend on when those laws are included on the IRS’s annual Required Amendments List. Under current IRS guidance, that deadline is the last day of the second calendar year that begins after the issuance of the applicable Required Amendments List in which the law change appears. Per the Notice, “It is anticipated that certain guidance issued under the SECURE Act will appear on the 2023 [Required Amendments] List.” If that holds true, the deadline for calendar-year individually-designed plans to adopt the amendments on that list will be December 31, 2025.