IRS Extends Amendment Period for SECURE and CARES Act Amendments to Retirement Plan and Individual Retirement Arrangements

IRS Notice 2022-33, released August 3, 2022, extends deadlines for amending a retirement plan or individual retirement arrangement (IRA) to reflect certain provisions of the legislation generally referred to as the  SECURE Act[1], the CARES Act[2] and the Miners Act[3]

The SECURE Act made changes to the age when annual required minimum distributions must start unless the individual continues to work for the employer sponsoring the tax qualified retirement plan, a Section 403(b) plan or a governmental Section 457(b) Plan.  The CARES Act permitted certain pandemic related distributions and/or loans to be made from plans and IRAs.  The CARES Act also permitted the waiver of the required minimum distributions for the 2020 calendar year.  The Miner’s Act permits, but does not require, in-service distributions from pension plans when a participant attains age 59½.  The Miner’s Act also permits in-service distributions from a governmental Section 457(b) plan at age 59½.

Under prior guidance the amendment deadline for private sector employers and sponsors of IRAs to reflect these legislative changes was the last day of the first plan year beginning on or after January 1, 2022.  The amendment deadline for governmental employers was the last day of the first plan year beginning on or after January 1, 2024.

Under Notice 2022-33 the deadline for private sector employers is extended to December 31, 2025.  Note that this deadline is not tied to a plan year end date.  The December 31, 2025, deadline also applies to Section 403(b) plans that are not maintained by a public school and trusts or annuity contracts that govern the operation of IRAs.

The deadline for governmental employers has been extended to 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 governmental Section 457(b) plans the statutory safeguard deadline of 180 days after the IRS provides notice to the plan sponsor that the operation of the Section 457(b) Plan is noncompliant still applies.  It is a better practice, however, to make sure the Section 457(b) plan document is timely amended to reflect current law.

Note that these extended deadlines do not apply to pandemic related loans and distributions authorized by the CARES Act.  If your defined contribution plan or IRA offered CARES Act distributions, the plan or IRA related governing documents must be amended by the original deadlines (last day of the plan year beginning after January 1, 2022, or January 1, 2024 for governmental plans).  Similarly, these deadlines apply to the adoption of amendments for CARES Act loans from defined contribution plans.

Plan amendments adopted to reflect the CARES Act and SECURE Act changes to the required minimum distribution process under Internal Revenue Code Section 401(a)(9) would trigger a violation of the anti-cutback requirements under Internal Revenue Code Section 411(d)(6) but for the broad anti-cutback protection provided for in the legislation. In order to take advantage of the anti-cutback protection, however, conforming amendments need to be adopted by the end of the amendment period now extended by Notice 2022-23.

Many employers adopted interim CARES Act and SECURE Act amendments in connection with the Cycle 3 restatement period for pre-approved defined contribution plans because of the looming 2022 amendment deadline.  Notice 2022-23 anticipates that “certain guidance issued under the SECURE Act will appear on the 2023 Required Amendments List”. It is likely that this anticipated guidance will require adopters of interim amendments to adopt a “final” SECURE Act amendment by December 31, 2025 to retain the anti-cutback protection.

The members of our Employee Benefits Section are happy to assist you with plan amendments and questions concerning required minimum distribution rules. Please contact Sharon Freilich, George Kasper, or Zachary Zeid.

[1] Division O of the Further Consolidated Appropriations Act, 2020, Pub. L. 116-94, 133 Stat. 2534 (2019), known as the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act).

[2] Section 2203 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. 116-136, 134 Stat. 281 (2020).

[3] Section 104 of Division M of the Further Consolidated Appropriations Act, 2020, known as the Bipartisan American Miners Act of 2019 (Miners Act).

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