On August 3, 2022, the Internal Revenue Service issued IRS Notice 2022-33, which extends the deadline for amending certain plans with the applicable requirements of the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act), the Bipartisan American Miners Act of 2019 (Miners Act), and one provision of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). In general, Notice 2022-33 extends each amendment deadline to December 31, 2025. Prior to Notice 2022-33, most non-governmental qualified plans were required to adopt plan amendments by the end of the 2022 plan year (2024 for governmental and collectively bargained plans). Certain governmental plans (but not collectively bargained plans) may delay amendment beyond 2025.
Requirements Subject to Deadline Extension
The extension applies to the deadline for plan amendments adopted in order to bring a plan into compliance with the following legislation:
- The SECURE Act’s new rules for qualified birth or adoption distributions, pooled employer plans, safe harbor plans, long-term part-time employees, required minimum distributions and other qualification requirements.
- The Miners Act §104, which provides for in-service distributions from defined benefit plans, governmental 457(b) plans, money purchase pension plans and transferred pension assets in other defined contribution plans at age 59½ (lowered from age 62).
- Section 2203 of the CARES Act, which permits waiver of 2020 required minimum distributions for certain plans.
Qualified Plans Covered by Notice 2022-33 Extension
Deadline Extended to December 31, 2025
Notice 2022-33 extends the deadline for the types of amendments described above until December 31, 2025 for qualified plans (including collectively bargained plans) that are not governmental plans. The extension also applies to the deadline to amend 403(b) plans (including collectively bargained plans) that are not maintained by a public school.
It is important to note that, unlike the deadline set forth in prior IRS guidance as “the last day of the first plan year beginning on or after January 1, 2022,” Notice 2022-33 sets December 31, 2025 as the amendment deadline date, regardless of the plan year.
Deadline Extended to Close of Third Legislative Session Beginning After December 31, 2023
For qualified governmental plans and for 403(b) plans maintained by public schools, Notice 2022-33 extends the deadline 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 example, a state legislature may meet from January 15 to May 15 and only in odd number years. The deadline for that state legislature to amend its qualified plan is effectively extended to August 13, 2029.
Extension for Governmental 457(b) Plans
For governmental 457(b) plans, the deadline is extended to 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 (similar to the governmental qualified plan example above), 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 Section 457(b) of the Code. Therefore, if the IRS notifies the same state legislature described in the prior example that its administration of a 457(b) plan is inconsistent with Section 457(b) after June 1, 2029, the deadline to amend the plan (assuming it is a calendar-year plan) would be extended to January 1, 2031.
No Anti-Cutback Violations for Amending By Original Deadline
Note that an amendment to a retirement plan to reflect a provision of the SECURE Act or the regulations thereunder that is made on or before the extended date will not cause the retirement plan to fail to satisfy the anti-cutback requirements of Section 411(d)(6) of the Internal Revenue Code or Section 204(g) of ERISA.
Amendments Not Covered By Extension Under Notice 2022-33
Notice 2022-33 does not extend the amendment deadline for tax-exempt 457(b) plans. Tax-exempt employers maintaining 457(b) plans must amend their plans by end of the 2022 plan year.
Additionally, if a plan permits coronavirus-related distributions and/or loans under CARES Act (or disaster-related distributions and/or loans under the Taxpayer Certainty and Disaster Tax Relief Act of 2020), the plan’s operational changes should be addressed in a conforming amendment by the end of the 2022 plan year.