401(K) CURRENT EVENTS: IRS EXTENDS DEADLINE TO AMEND PLANS FOR ADDITIONAL CARES ACT, CAA DISASTER RELIEF PROVISIONS

On September 26, 2022, the IRS issued Notice 2022-45 which extends the deadline for amending retirement plans, including 401(k) plans, to comply with recent legislation. The applicable legislative provisions, which have now expired, were enacted as part of a wider effort to provide temporary relief in response to the global COVID-19 pandemic, and generally require plan documents to be amended, as further explained below.

The affected provisions are: (i) the expanded plan loan provisions and “coronavirus-related distributions” under the Coronavirus Aid, Relief, and Economic Security Act of 2020 (the “CARES Act”); and (ii) “qualified disaster distributions” under the Consolidated Appropriations Act of 2021 (the “CAA”).

COMMENT: As you may recall, on August 3, 2022, the IRS extended the deadline for amending 401(k) plans to comply with certain provisions of the Setting Every Community Up for Retirement Enhancement Act of 2019 (the “SECURE Act”), along with certain other CARES Act provisions (see our blog entitled “401(k) Current Events: IRS Extends Deadline for Amending Plans to Comply with SECURE and CARES Acts” for details).

Notably, the August 3, 2022 guidance referred to above did not extend the deadline for adopting amendments implementing the CARES Act’s “coronavirus-related distributions” and extended loan provisions, or the CAA’s “qualified disaster distributions” — the deadline for each of which remained, until now, the last day of the first plan year beginning in 2022.

But under Notice 2022-45, the deadline for amending plans to implement the above CARES Act and CAA provisions has now been extended until December 31, 2025.

Background – CARES Act and CAA.

In response to the ongoing, global COVID-19 crisis, Congress passed the CARES Act, which contained a host of retirement provisions aimed at helping to ease the financial impact of the health emergency. (See our article entitled “Congress Passes CARES Act in Response to COVID-19 Crisis, Contains 401(k) Ease-of-Access and Other Provisions” and related CompliaceDashboard resources for details about the CARES Act retirement provisions.) Among the more significant provisions for 401(k) plans were optional expanded participant loan provisions and “coronavirus related distributions,” both of which have now expired, and are further explained in the article sited above.

Later, Congress passed the CAA, which added optional “qualified disaster distributions.”  See our article entitled “401(k): CAA Expanded Loan and Withdrawal Provisions Differ from CARES Act” for details about these distributions, which also have now expired.

Plan Amendments Required in Response to Changes in Applicable Law.

When the laws regarding qualified 401(k) and other retirement plans change, as they did with the enactment of the CARES Act and CAA, plan documents generally must be amended to conform their terms to the new laws. The deadlines for making these plan amendments are usually contained in the text of the legislation itself. Failure to amend plans to keep up with these and other changes can adversely affect the qualification of the plans, and may also result in penalties and other adverse consequences.

In the case of both the CARES Act and the CAA, the statutes provided that most 401(k) plans must be amended by no later than the end of the first plan year beginning on or after January 1, 2022.

Notwithstanding these statutory deadlines, the U.S. Department of Treasury/IRS has broad authority to provide for later amendment deadlines, and the statutory cutoff dates have often been extended in the past for various pieces of major pension legislation. This time around is proving to be no different.

New, Extended CARES Act and CAA Plan Amendment Deadlines.

For most 401(k) plans, Notice 2022-45 extends the deadline to adopt plan amendments, for both the CARES Act and CAA provisions discussed herein, until December 31, 2025 (but see “Caution!” below).

Later deadlines apply for governmental plans, but not, as has sometimes been the case, for collectively bargained plans.

OBSERVATION: Together with Notice 2022-33 released in August 2022, Notice 2022-45 now brings conformity to 401(k) plans regarding amendment deadlines for applicable, similar SECURE Act, CARES Act and CAA provisions. In other words, all such amendments must now generally be adopted by a single date; i.e., on or before December 31, 2025.

CAUTION! As we noted on our blog regarding the August 3, 2022 amendment deadline extension  because the original, statutory amendment deadlines were based on plan years, whereas the extended deadline in Notices 2022-33 and 2022-45 are a specified date (i.e., December 31, 2025), non-calendar year plans should take special care to ensure that the extended deadline is not inadvertently overlooked. (For more information about non-calendar year 401(k) plans, see our reference article entitled “Special Considerations for Non-Calendar Year 401(k) Plans”.)

DISCLAIMER: This article is intended only as a brief overview of IRS Notice 2022-45 with respect to the deadline extension for 401(k) plan amendments to comply with the CARES Act and/or CAA. It is not intended to address the details of 401(k) plan qualification, plan amendments generally, other legal requirements for plans, or similar topics. As always, please consult your own ERISA attorney or advisor for individualized advice concerning your own 401(k) plan.

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.