IRS Issues 2023 List of Changes in Plan Qualification Requirements

2023 Cumulative List of Changes in Plan Qualification Requirements for Defined Contribution Qualified Pre-approved Plans

I. PURPOSE

This notice sets forth the 2023 Cumulative List of Changes in Plan Qualification Requirements for Defined Contribution Qualified Pre-approved Plans (2023 Cumulative List). The 2023 Cumulative List will assist providers applying to the Internal Revenue Service (IRS) for opinion letters for the fourth remedial amendment cycle for defined contribution qualified pre-approved plans (Cycle 4) under the IRS's pre-approved plan program. Cycle 4 began on February 1, 2023. The 2023 Cumulative List identifies recent changes in the qualification requirements of the Internal Revenue Code (Code) that were not taken into account during the first three remedial amendment cycles for defined contribution qualified pre-approved plans and that will be taken into account by the IRS with respect to the form of a plan submitted to the IRS for Cycle 4. The Cycle 4 submission period begins on February 1, 2024, and ends on January 31, 2025.

II. BACKGROUND

Under Rev. Proc. 2023-37, 2023-51 IRB 1491, every pre-approved plan has a recurring remedial amendment cycle, and a provider of a pre-approved plan may apply for a new opinion letter for the plan for each remedial amendment cycle. Further, defined contribution qualified pre-approved plans, defined benefit qualified pre-approved plans, and section 403(b) pre-approved plans all have separate remedial amendment cycles. Part III of Rev. Proc. 2023-37 sets forth the procedures for a provider to apply for a Cycle 4 opinion letter for a defined contribution qualified pre-approved plan as well as the scope of reliance provided by a Cycle 4 opinion letter to adopting employers of a provider's defined contribution pre-approved plan.

Pursuant to section 17 of Rev. Proc. 2023-37, the IRS publishes a cumulative list for each remedial amendment cycle to identify the recent changes in the qualification requirements that will be taken into account with respect to the form of a pre-approved plan submitted to the IRS for that remedial amendment cycle.¹ A change in the qualification requirements includes a statutory change or a change in the requirements provided in regulations or other guidance published in the Internal Revenue Bulletin, without regard to whether the change is required to be reflected in plan terms or relates to an optional provision that a provider could choose to reflect in plan terms as a discretionary amendment.

III. APPLICATION OF THE 2023 CUMULATIVE LIST

The 2023 Cumulative List sets forth, in section V of this notice, specific items the IRS has identified for review in determining whether the form of a defined contribution qualified pre-approved plan that has been submitted to the IRS for a Cycle 4 opinion letter has been properly updated since the plan was submitted for a Cycle 3 opinion letter.²

Generally, the IRS will consider only the items on the 2023 Cumulative List in determining whether to issue a Cycle 4 opinion letter with respect to a pre-approved plan. However, if a plan has not been previously reviewed and is submitted for Cycle 4 (or has been amended with respect to previously approved language), the IRS will also review the plan for items on earlier Cumulative Lists³ as well as for any other applicable qualification requirements that were considered by the IRS in issuing opinion letters prior to the implementation of Cumulative Lists.

The list of changes in section V of this notice does not extend the deadline by which a plan must be amended to comply with any change in the qualification requirements applicable to the plan. The general deadline for timely adoption of an interim or discretionary amendment is provided in section 7 of Rev. Proc. 2023-37. However, see section IV of this notice regarding the extended plan amendment deadline applicable to interim and discretionary amendments adopted to reflect a provision of the SECURE 2.0 Act of 2022, enacted on December 29, 2022, as Division T of the Consolidated Appropriations Act, 2023, Pub. L. 117-328, 136 Stat. 4459 (2022) (SECURE 2.0 Act).

IV. CHANGES IN QUALIFICATION REQUIREMENTS UNDER THE SECURE 2.0 ACT

The SECURE 2.0 Act made several changes to plan qualification requirements. The IRS will review a defined contribution qualified pre-approved plan document that is submitted for Cycle 4 only for those changes in qualification requirements made pursuant to the SECURE 2.0 Act that are listed in section V of this notice.⁴ Providers of pre-approved plans should not include in plan documents submitted with their Cycle 4 opinion letter applications terms reflecting SECURE 2.0 Act provisions that are not listed in section V. However, providers of pre-approved plans need to comply with applicable requirements relating to timely adoption of interim or discretionary amendments to reflect changes in qualification requirements made by SECURE 2.0 Act provisions, whether or not they are listed in section V. Generally, the deadline for adopting any required plan amendment made pursuant to the SECURE 2.0 Act is December 31, 2026. This deadline, provided in Q&A J-1 of Notice 2024-2, 2024-2 IRB __, __ (January 8, 2024) will apply with respect to interim amendments made pursuant to the SECURE 2.0 Act, rather than the general deadline for timely adoption of interim amendments set forth in section 7.01(1)(a) of Rev. Proc. 2023-37. The deadline for discretionary amendments made pursuant to the SECURE 2.0 Act generally is also December 31, 2026 (as provided in Q&A J-1 of Notice 2024-2), or, if later, the deadline for the timely adoption of discretionary amendments set forth in section 7.01(1)(b) of Rev. Proc. 2023-37, if applicable (depending on the year in which the operation of the plan is changed to reflect a SECURE 2.0 Act provision permitting an optional change).

V. 2023 CUMULATIVE LIST OF CHANGES IN PLAN QUALIFICATION REQUIREMENTS FOR DEFINED CONTRIBUTION QUALIFIED PRE-APPROVED PLANS

1. Section 401(a):

a. Required Minimum Distributions (Section 401(a)(9))

i. Required beginning date

• Section 114 of the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act), enacted on December 20, 2019, as Division O of the Further Consolidated Appropriations Act, 2020, Pub. L. 116-94, 133 Stat. 2534 (2019) (FCAA 2020), amends section 401(a)(9)(C)(i)(I) of the Code to increase the age with respect to which the required beginning date for required minimum distributions (RMDs) is determined from age 70½ to age 72 for employees born on or after July 1, 1949, but before January 1, 1951.

• Section 107 of the SECURE 2.0 Act amends section 401(a)(9)(C) of the Code to increase the age with respect to which the required beginning date for RMDs is determined from age 72 to age 73, for employees born on or after January 1, 1951.⁵

ii. Waiver of 2020 RMD

• Section 2203(a) of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. 116-136, 134 Stat. 281 (2020), adds new section 401(a)(9)(I) of the Code to provide for a temporary waiver of RMDs from defined contribution plans for calendar year 2020.

• Notice 2020-51, 2020-29 IRB 73, provides guidance relating to the waiver of RMDs from defined contribution plans for calendar year 2020.

iii. Miscellaneous

• Section 401 of the SECURE Act amends section 401(a)(9) of the Code to provide new RMD rules for designated beneficiaries.

• Proposed regulations under section 401(a)(9) that were published on February 24, 2022 (87 FR 10504), would provide guidance relating to RMDs from defined contribution plans that reflects the amendments made to section 401(a)(9) by sections 114 and 401 of the SECURE Act. These regulations are proposed to apply only on or after the date of publication of final regulations. The proposed regulations provide that, until the final regulations are published, an employer may rely on a good faith, reasonable interpretation of the amendments made by sections 114 and 401 of the SECURE Act to which the final regulations relate. Compliance with the proposed regulations is considered reliance on a good faith, reasonable interpretation of the amendments made by sections 114 and 401 of the SECURE Act to which the final regulations relate.

• Section 202(a)(1) and (2) of the SECURE 2.0 Act eliminates the percentage limitation and increases the dollar limitation (from $125,000 to $200,000, subject to future adjustments for inflation) with respect to the amount of an employee's interest under a defined contribution plan which may be used to pay premiums with respect to a qualifying longevity annuity contract.

  b. Certain Involuntary Distributions (Sections 401(a)(31)(B) and 411(a)(11))

• Section 304 of the SECURE 2.0 Act permits a plan to increase its involuntary cashout limit up to $7,000 (increased from $5,000).

c. Distributions During Working Retirement (Section 401(a)(36))

• Section 104 of the Bipartisan American Miners Act of 2019 (Miners Act), enacted 6 on December 20, 2019, as Division M of the FCAA 2020, amended section 401(a)(36) of the Code to lower the minimum age at which a pension plan (including a money purchase pension plan) may make a distribution to an employee who is not separated from employment at the time of the distribution. The minimum age is lowered from age 62 to age 59½.

• Notice 2020-68, 2020-38 IRB 567, provides guidance with respect to section 104 of the Miners Act.

d. Miscellaneous Distributions and Recontributions

• Section 109 of the SECURE Act provides that defined contribution plans may permit certain transfers and distributions of lifetime income investment options in cases in which the investment options are no longer authorized to be held as investment options under the plan.

• Section 113 of the SECURE Act amends the Code to add section 72(t)(2)(H), which permits an individual to receive a distribution from an applicable eligible retirement plan of up to $5,000 without application of the 10% additional tax if the distribution meets the requirements to be a qualified birth or adoption distribution. An individual generally may recontribute a qualified birth or adoption distribution to an applicable eligible retirement plan in which the individual is a beneficiary and to which a rollover may be made.

• Notice 2020-68 provides guidance with respect to the SECURE Act, including section 113 of the SECURE Act.

• Section 115 of the SECURE 2.0 Act amends the Code to add section 72(t)(2)(I), which permits an individual to receive a distribution from an applicable eligible retirement plan of up to $1,000 without application of the 10% additional tax if the distribution meets the requirements to be an emergency personal expense distribution. An individual generally may, during the 3-year period beginning on the day after receipt of an emergency personal expense distribution, recontribute the distribution to an applicable eligible retirement plan in which the individual is a beneficiary and to which a rollover may be made.

• Section 311 of the SECURE 2.0 Act amends section 72(t)(2)(H)(v)(I) of the Code (as added by section 113 of the SECURE Act) to restrict the permitted period for recontribution of qualified birth or adoption distributions to three years for qualified birth or adoption distributions made after December 29, 2022. Qualified birth or adoption distributions made prior to that date may be recontributed any time prior to January 1, 2026.

• Section 314 of the SECURE 2.0 Act amends the Code to add section 72(t)(2)(K), which permits an individual to receive a distribution from an applicable eligible retirement plan of up to $10,000 (to be adjusted for inflation) without application of the 10% additional tax if the distribution is an eligible distribution to a domestic abuse victim. An individual generally may, during the 3-year period beginning on the day after receipt of an eligible distribution, recontribute the distribution to an applicable eligible retirement plan in which the individual is a beneficiary and to which a rollover may be made.

e. Forfeitures

• Proposed regulations under section 401 of the Code that were published on February 27, 2023 (88 FR 12282), would provide rules relating to the use of forfeitures in qualified retirement plans. The proposed regulations are proposed to apply only to plan years that begin on or after January 1, 2024, but, prior to the applicability date of final regulations, taxpayers may rely on the proposed regulations.

f. Witnessing of Spousal Consent

• Proposed regulations under section 401 of the Code that were published on December 30, 2022 (87 FR 80501), would provide an alternative to in-person witnessing of spousal consents required to be witnessed by a notary public or a plan representative and would clarify that certain special rules for the use of an electronic medium for participant elections also apply to spousal consents. The regulations are proposed to apply on the date that is six months after the publication of final regulations, but, prior to the applicability date of final regulations, taxpayers may rely on the proposed regulations.⁶

2. Section 401(b):

• Section 317 of the SECURE 2.0 Act amends section 401(b)(2) of the Code to provide that, in the case of an individual who owns the entire interest in an unincorporated trade or business and who is the only employee of such trade or business, any elective deferrals (as defined in section 402(g)(3)) under a qualified cash or deferred arrangement that has been adopted retroactively pursuant to section 401(b)(2), which are made by such individual before the time for filing the individual's tax return (determined without regard to any extensions) for the taxable year ending after or with the end of the plan's first plan year, will be treated as having been made before the end of such first plan year.

3. Section 401(k) and 401(m):

a. Hardship Distributions

• Section 41113 of the Bipartisan Budget Act of 2018 (BBA), Pub. L. 115-123, 132 Stat. 64 (2018), in part, directs the Secretary of the Treasury (Secretary) to modify Treas. Reg. §1.401(k)-1(d)(3)(iv)(E) to delete the 6-month prohibition on contributions after a hardship distribution and to make any other modifications necessary to carry out the purposes of section 401(k)(2)(B)(i)(IV) of the Code. (See the final regulations described in the third bullet of this section.)

• Section 41114 of the BBA amends section 401(k) of the Code to (1) modify the hardship distribution rules to expand the sources of hardship distributions to include qualified nonelective contributions, qualified matching contributions, and earnings on those contributions and on elective contributions, and (2) provide that a distribution from a plan is not treated as failing to be made upon the hardship of an employee solely because the employee does not take any available loan under the plan.

• Final regulations under section 401(k) that were published on September 23, 2019 (TD 9875, 84 FR 49651), amend the rules relating to hardship distributions from 401(k) plans to reflect statutory changes, including changes made by the BBA.⁷

b. Definitions of Qualified Nonelective Contributions and Qualified Matching Contributions

• Final regulations under section 401(k) and (m) that were published on July 20, 2018 (TD 9835, 83 FR 34469), amend the definitions of qualified nonelective contributions (QNECs) and qualified matching contributions (QMACs) to provide that QNECs and QMACs must satisfy applicable nonforfeitability and distribution requirements at the time they are allocated to participants' accounts, but need not meet these requirements when they are contributed to the plan.⁸

c. Safe Harbor Plans

• Section 102 of the SECURE Act amends section 401(k)(13)(C)(iii) of the Code to increase the 10% cap on automatic elective contributions under a qualified automatic contribution arrangement to 15% (for periods following the initial period of automatic elective contributions described in section 401(k)(13)(C)(iii)(I)).

• Section 103 of the SECURE Act amends section 401(k) of the Code to (1) eliminate certain safe harbor notice requirements for plans that provide for safe harbor nonelective contributions and (2) add new provisions for the retroactive adoption of safe harbor status for those plans.

• Notice 2020-52, 2020-29 IRB 79, clarifies the requirements that apply to a mid-year amendment to a safe harbor section 401(k) or 401(m) plan that reduces only contributions made on behalf of highly compensated employees. It also provides temporary coronavirus-related relief (which requires that specified plan language be adopted as a condition of obtaining the relief) from certain requirements that would otherwise apply to a mid-year amendment adopted between March 13, 2020, and August 31, 2020, to reduce or suspend safe harbor contributions to a safe harbor section 401(k) or 401(m) plan.

• Notice 2020-86, 2020-53 IRB 1786, provides guidance with respect to sections 102 and 103 of the SECURE Act.

• Section 121(a) of the SECURE 2.0 Act adds new section 401(k)(16) to the Code to provide that an eligible employer may establish a “starter 401(k) deferral-only arrangement” pursuant to the requirements of section 401(k)(16).

• Section 401(a)(1) of the SECURE 2.0 Act amends section 401(m)(12) of the Code to provide that a safe harbor automatic contribution arrangement under section 401(m)(12) must meet the notice requirements under section 401(k)(13)(E).

d. Long-term, Part-time Employees

• Section 112 of the SECURE Act and sections 125 and 401(a)(2) of the SECURE 2.0 Act amend section 401(k)(2)(D) of the Code and add new section 401(k)(15) to the Code to provide that a qualified cash or deferred arrangement may not require an employee meeting the minimum age requirement to complete, for eligibility purposes, a period of service that extends beyond the close of the earlier of: (i) the period permitted under section 410(a)(1) (disregarding section 410(a)(1)(B)(i)); or (ii) subject to section 401(k)(15), the first period of 1 three consecutive 12-month periods (or, for plan years beginning after December 31, 2024, the first period of two consecutive 12-month periods) during each of which the employee has completed at least 500 hours of service. For purposes of determining an employee's eligibility to participate on account of clause (ii) in the preceding sentence, or for purposes of determining the vesting service of an employee who is eligible to participate solely on account of clause (ii), 12-month periods beginning before January 1, 2021, are not taken into account.

• Proposed regulations under section 401(k) that were published on November 27, 2023 (88 FR 82796), would provide guidance relating to long-term, part-time employees that reflect the amendments made to section 401(k) by section 112 of the SECURE Act and sections 125 and 401 of the SECURE 2.0 Act. These regulations are proposed to apply only to plan years that begin on or after January 1, 2024, but, prior to the applicability date of final regulations, taxpayers may rely on the proposed regulations.

e. SIMPLE 401(k) Plans

• Section 116 of the SECURE 2.0 Act amends sections 408(p) and 401(k) of the Code to permit an employer to make additional nonelective contributions for a year (beyond the 2% nonelective contribution permitted in lieu of the otherwise required matching contribution) of a uniform percentage of compensation up to a specified amount for each employee who is eligible to participate in the employer's SIMPLE 401(k) plan and who has at least $5,000 of compensation from the employer for the year.

• Section 117 of the SECURE 2.0 Act permits eligible employers to allow eligible employees to contribute up to a specified amount of additional elective contributions and catch-up contributions to SIMPLE 401(k) plans.

• Notice 2024-2, in section II.E, provides guidance with respect to section 117 of the SECURE 2.0 Act.

4. Sections 402 and 402A:

• Section 41104 of the BBA adds section 6343(f) of the Code to hold an individual harmless in the case of a wrongful levy upon an eligible retirement plan. The eligible retirement plan may permit the contribution of any property or money returned to the individual as a result of the wrongful levy, and such contribution will be treated as a rollover under section 402(c) or section 402A(c)(3), as applicable.

• Proposed regulations under section 402(c) that were published on February 24, 2022 (87 FR 10504), amend the rules relating to eligible rollover distributions from defined contribution plans. These regulations are proposed to apply only to taxable years beginning on or after the publication of final regulations, but taxpayers may choose to rely on the proposed regulations from the date of their publication.

• Section 604 of the SECURE 2.0 Act amends section 402A of the Code to allow a qualified plan to permit an employee to elect to designate nonforfeitable employer matching or nonelective contributions as Roth contributions.

• Notice 2024-2, in section II.L, provides guidance with respect to section 604 of the SECURE 2.0 Act.

5. Section 402(l):

• Section 328 of the SECURE 2.0 Act amends section 402(l)(5)(A) of the Code to permit governmental plans to make direct distributions to certain eligible retired public safety officers of amounts necessary to pay for qualified health insurance premiums, provided the participant includes an attestation as to the necessity of the distribution along with the participant's tax return for the taxable year of the distribution.

6. Section 411:

• Section 209 of the Taxpayer Certainty and Disaster Tax Relief Act of 2020, enacted as Division EE of the Consolidated Appropriations Act, 2021 (CAA 2021), Pub. L. 116-260, 134 Stat. 1182 (2020), provides temporary guidance relating to partial plan terminations.⁹

7. Section 413:

• Section 101(a) of the SECURE Act adds section 413(e) of the Code, which creates a statutory exception to the unified plan rule for certain types of multiple employer plans (MEPs) that include defined contribution qualified plans.

• Proposed regulations under section 413(e) were published on March 28, 2022 (87 FR 17225). These regulations are proposed to apply only on or after the date of publication of final regulations. The proposed regulations provide that, pursuant to section 413(e)(4)(B), until the final regulations are published, an employer or pooled plan provider may rely on a good faith, reasonable interpretation of the provisions of section 413(e) to which the final regulations relate. Compliance with the proposed regulations is considered reliance on a good faith, reasonable interpretation of the provisions of section 413(e) to which the final regulations relate.

8. Section 414(p):

• Section 339 of the SECURE 2.0 Act amends the definition of “domestic relations order” in section 414(p)(1)(B) of the Code to include a domestic relations order issued pursuant to an Indian tribal domestic relations law.

9. Section 414(v):

• Section 109 of the SECURE 2.0 Act amends section 414(v) of the Code to increase the annual limit on catch-up contributions, beginning with the 2025 taxable year, for individuals between ages 60 and 63. For non-SIMPLE plans, the increased limit is the greater of $10,000 or 150% of the regular catch-up limit for 2024, indexed for inflation. For SIMPLE plans, the increased limit is the greater of $5,000 or 150% of the regular catch-up limit for 2025, indexed for inflation.

10. Section 415:

• Section 116 of the SECURE Act amends section 415(c) of the Code to treat difficulty of care payments that are excluded from gross income as compensation for determining retirement contribution limitations.

• Notice 2020-68 provides guidance with respect to the SECURE Act, including section 116 of the SECURE Act.

11. Section 416:

• Section 121(c)(3) of the SECURE 2.0 Act revises section 416(g)(4)(H) of the Code to provide that a starter 401(k) deferral-only arrangement described in section 401(k)(16)(B) shall not be treated as a top-heavy plan.

• Section 310 of the SECURE 2.0 Act adds new section 416(c)(2)(C) to the Code, under which employees not meeting the age or service requirements of section 410(a)(1) (without regard to subparagraph (B) thereof) may be excluded from consideration in determining whether a plan meets the top-heavy minimum benefit requirements in section 416(c)(2)(A) and (B).

12. Disaster-related Rules:

• Section 502 of the Disaster Tax Relief and Airport and Airway Extension Act of 2017, Pub. L. 115-63, 131 Stat. 1168 (2017), as amended by section 20201 of the BBA, provides special disaster-related rules for use of retirement funds.

• Section 11028 of the Tax Cuts and Jobs Act of 2017, Pub. L. 115-97, 131 Stat. 2054 (2017), provides special disaster-related rules for use of retirement funds.

• Section 20101 of the BBA provides special disaster-related rules for use of retirement funds.

• Section 202 of the Taxpayer Certainty and Disaster Tax Relief Act of 2019, enacted as Division Q of the FCAA 2020, provides special disaster-related rules for use of retirement funds.

• Section 2202 of the CARES Act, as modified by section 280 of Division N of the CAA 2021, provides special rules for coronavirus-related distributions and plan loans made to qualified individuals.

• Notice 2020-50, 2020-28 IRB 35, provides guidance relating to the application of section 2202 of the CARES Act for qualified individuals and eligible retirement plans.

• Section 302 of the Taxpayer Certainty and Disaster Tax Relief Act of 2020 provides special disaster-related rules for use of retirement funds.

• Section 331 of the SECURE 2.0 Act provides permanent special rules governing plan distributions, recontributions, and loans to participants affected by qualified federally declared major disasters.

VI. DRAFTING INFORMATION

The principal author of this notice is Jessica Weinberger of the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). For further information regarding this notice, contact Employee Plans at (513) 975-6319 (not a toll-free number).