On November 21, 2022, the IRS released Notice 2022-62, its annual list of required amendments (RA List) for individually designed qualified retirement plans, including 401(k) plans. Notably, for the second consecutive year, the RA List contains no provisions directly applicable to 401(k) plans — and, in fact, contains no changes affecting retirement plans at all.
Last year, as you may recall, the 2021 RA List contained no provisions affecting 401(k) plans, but did include a change that affected certain defined benefit pension plans. See our blog entitled “IRS’ 2021 Required Amendments List Doesn’t Affect 401(k) Plans” for details.
Prior to that, for 2021, the RA List included only a single 401(k)-related provision – and that provision only affected a limited number of 401(k) plans. See our blog entitled “2020 Required Amendments Have Little Impact on 401(k) Plans” for details.
All in all, this makes three years in a row in which little or nothing needs to be done in terms of amending most 401(k) plans. In past years, 401(k) and other retirement plans frequently have been subject to multiple required amendments, depending on the number of new law changes, their effective dates, and a particular plan’s design and unique features.
OBSERVATION: The absence of required amendments in recent years is not an indication that the government is no longer concerned with retirement plans – indeed, there are currently several legislative proposals that, if passed, would have a profound effect on 401(k) plans. As it happens, the amendment deadlines for recent statutory and other legal changes have largely not fallen within the past three years. Plan sponsors and administrators should avoid being lulled into a sense of false security, supposing that 401(k) plans are no longer being monitored or regulated by the IRS and/or other governmental agencies. Furthermore, 401(k) plans may need to be amended for reasons other than their inclusion on the RA List (see discussion below under “CAUTION: Other Plan Amendments May Still Be Required!).
Background – RA Lists.
To assist individually designed qualified retirement plan sponsors with keeping their plan documents up-to-date, the IRS issues RA Lists at the end of each calendar year to identify changes in the Internal Revenue Code’s qualification requirements that might require a “remedial” plan amendment to be made. If such amendments are not timely made, a plan could potentially be subject to disqualification or other sanctions. The RA List is divided into two parts – Part A covers changes in qualification requirements that generally would require an amendment to most plans (or to most plans that are affected by the change); whereas Part B covers changes in qualification requirements that might require a plan amendment because of an unusual provision in a particular plan.
The RA List is geared toward remedial amendments made to individually designed plans, which are generally maintained and amended by the plan sponsor (usually through its legal counsel or ERISA consultant). Many 401(k) plans, however, are pre-approved plans (sometimes known as “master and prototype plans” or “volume submitter plans”), which generally are amended and maintained by the preapproved plan vendor or supplier, subject to a different timeframe. Generally, the plan sponsor in these cases need only sign onto the amendments which have already been prepared by the vendor or supplier. For more information on types of plan documents and plan amendments, see our article entitled “401(k) Document Review”.
RA Lists generally do not include guidance issued or legislation enacted after the list has been prepared. Further, the lists do not include:
- Statutory changes in requirements for which the IRS expects to issue guidance at a future time (which would be included on an RA List issued in a future year);
- Changes in legal requirements that permit, but do not require, optional plan provisions, as contrasted with changes in legal requirements that cause existing plan provisions to become “disqualifying provisions;” or
- Changes in the tax laws that, although they may affect qualified individually designed plans (for example, the taxation of distributions), they do not change the actual plan qualification requirements themselves.
The 2022 RA List.
As previously stated, the 2022 RA List contains no changes in the qualification requirements requiring plan amendments to qualified retirement plans, including 401(k) plans.
CAUTION: Other Plan Amendments May Still Be Required!
Although the 2022 RA List does not identify any required amendments for 401(k) plans, 401(k) sponsors may still need to amend their plans for other reasons. For example, RA Lists do not take into account any discretionary plan amendments that a 401(k) plan sponsor may wish to make – for example, amendments modifying the plan’s entry date requirements, changing the vesting schedule, or adding a new distribution option. Such non-required amendments generally must be adopted by the end of the plan year in which the desired plan changes become effective.
DISCLAIMER: This article is intended as a general overview of the new IRS guidance issued on November 21st as it affects 401(k) plans and is not meant to address the details of plan qualification, plan amendments generally, other types of retirement plans (such as defined benefit plans or 403(b) plans), or previous or related IRS or other official guidance. As always, be sure to consult with your own ERISA attorney or other professional advisor for individualized advice with respect to your plan’s unique situation.
The information and content contained in this blog post are for general informational purposes only, and does not, and is not intended to, constitute legal advice. As always, for specific questions concerning your 401(k) retirement plan, or for help in operating your plan during the current COVID-19 crisis, please consult your own ERISA attorney or professional advisor.