Notice 2009-97 extends the deadline for amending qualified retirement plans to meet certain requirements of the Internal Revenue Code that were added by the Pension Protection Act of 2006, P.L. 109-280, and subsequently modified by the Worker, Retiree, and Employer Recovery Act of 2008, P.L. 110-458. The deadline is extended to the last day of the first plan year that begins on or after January 1, 2010.
Extension of Deadline to ject to the minimum funding requirements Section 401(a)(35), which was added Adopt Certain Retirement of § 412 to meet the requirements of § 436. by section 901(a)(1) of PPA ’06, requires Plan Amendments Section 436, which was added by section certain defined contribution plans to meet 113(a)(1) of PPA ’06, imposes funding- certain diversification requirements with based limits on benefits and benefit ac- respect to investments in employer secu- Notice 2009–97 cruals under single-employer plans. The rities. The requirements of § 401(a)(35) I. Purpose requirements of § 436 generally apply to generally apply to plan years that begin af- plan years that begin after December 31, ter December 31, 2007. Notice 2006–107, This notice extends the deadline for 2007. Final regulations under § 436 were 2006–2 C.B. 1114, provides transitional amending qualified retirement plans to published in the Federal Register on Octo- guidance regarding § 401(a)(35). Pro- meet certain requirements of the Internal ber 15, 2009, 74 F.R. 53004. posed regulations under § 401(a)(35) Revenue Code that were added by the Section 411(a)(13), which was added were published in the Federal Register on Pension Protection Act of 2006 (PPA ’06), by section 701(b)(2) of PPA ’06, contains January 3, 2008, 73 F.R. 421. Final regu- Pub. L. 109–280, and subsequently modi- special rules for cash balance and other lations under § 401(a)(35) are expected to fied by the Worker, Retiree, and Employer applicable defined benefit plans. Sec- be published in the near future. Recovery Act of 2008 (WRERA), Pub. L. tion 411(a)(13)(A) provides, in general, Section 401(b) provides a period during 110–458. The deadline is extended to the that an applicable defined benefit plan which a plan may be amended retroac- last day of the first plan year that begins on will not fail to satisfy the requirements of tively to comply with the Code’s qualifi- or after January 1, 2010. This extension § 411(a)(2), 411(c), or 417(e) solely be- cation requirements. Section 1.401(b)–1 applies to: cause the present value of the participant’s of the Treasury regulations and Rev. 1. The deadline for amending single- accrued benefit under the plan equals the Proc. 2007–44, 2007–2 C.B. 54, describe employer defined benefit plans to meet the balance in the participant’s hypothetical the disqualifying provisions that may be requirements of §§ 401(a)(29) and 436, account or the accumulated percentage of amended retroactively and the remedial relating to funding-based limits on bene- the participant’s final average compensa- amendment period during which retroac- fits and benefit accruals under single-em- tion. Section 411(a)(13)(B) requires an tive amendments may be adopted. The ployer plans; applicable defined benefit plan to provide regulations also grant the Commissioner 2. The deadline for amending cash 100 percent vesting for employer-derived the discretion to extend the remedial balance and other applicable defined benefits on completion of three years of amendment period. benefit plans, within the meaning of service. Section 411(a)(13) is generally Section 5.05 of Rev. Proc. 2007–44 § 411(a)(13)(C), to meet the require- effective for years that begin after Decem- provides that when there are statutory or ments of § 411(a)(13) (other than ber 31, 2007, and for distributions made regulatory changes to the plan qualifica- § 411(a)(13)(A)) and § 411(b)(5), relating after August 17, 2006. tion requirements that will impact provi- to vesting and other special rules applica- Section 411(b)(5), which was added sions of the written plan document, the ble to these plans; and by section 701(b)(1) of PPA’06 and is adoption of an interim amendment will 3. The deadline for amending applica- generally effective for years that begin generally be required by the later of the end ble defined contribution plans, within the after December 31, 2007, contains spe- of the plan year in which the change is first meaning of § 401(a)(35)(E), to meet the re- cial rules for applicable defined benefit effective or the due date of the employer’s quirements of § 401(a)(35), relating to di- plans with regard to the requirements of tax return for the tax year that includes the versification requirements for certain de- § 411(b)(1)(H), which prohibits a defined date the change is first effective. fined contribution plans. benefit plan from ceasing an employee’s Section 411(d)(6) provides generally This notice also provides limited re- benefit accruals or reducing an employee’s that a plan will not satisfy § 401(a) if an lief from the anti-cutback requirements rate of benefit accrual because of the at- amendment to the plan decreases a partic- of § 411(d)(6) for amendments that are tainment of any age. ipant’s accrued benefit. For this purpose, adopted by the extended deadline for Notice 2007–6, 2007–1 C.B. 273, a plan amendment which has the effect amending a plan to meet the requirements provides transitional guidance regarding of eliminating or reducing an early retire- of §§ 401(a)(29) and 436. In addition, this the requirements of §§ 411(a)(13) and ment benefit or a retirement-type subsidy notice provides that limited § 411(d)(6) 411(b)(5). Proposed regulations under or eliminating an optional form of bene- relief is expected to be granted for amend- §§ 411(a)(13) and 411(b)(5) were pub- fit with respect to benefits attributable to ments that are adopted by the extended lished in the Federal Register on December service before the amendment is treated as deadline for amending a plan to meet the 28, 2007, 72 F.R. 73690. Announcement reducing accrued benefits. Section 401(b) requirements of § 411(b)(5) once final reg- 2009–82, 2009–48 I.R.B. 720, announced does not relieve a plan of the requirement ula
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