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Pension and Employee Benefits: Code, ERISA, & Regulations
This series provides an authoritative and comprehensive reference to the full text of benefits-related provisions of the Internal Revenue Code, the full text of ERISA, and related proposed and final regulations, as well as the official IRS and DOL preambles, and Committee Reports.
from Spencer’s Benefits Reports: In Notice 2009-98, the Internal Revenue Service sets forth the 2009 Cumulative List of Changes in Plan Qualification Requirements described in Sec. 4 of Rev. Proc. 2007-44, C.B. 2007-2, 54. The 2009 Cumulative List is to be used primarily by sponsors of individually designed retirement plans that are in Cycle E. An individually designed plan is in Cycle E if it is a single-employer plan where the last digit of the employer identification number of the plan sponsor is 5 or 0, or it is an IRC Sec. 414(d) governmental plan for which an election has been made by the plan sponsor to treat Cycle E as the initial remedial amendment cycle for the plan under the Economic Growth and Tax Relief Reconciliation Act of 2001. The list of changes in the notice does not extend the deadline by which a plan must be amended to comply with any statutory, regulatory, or guidance changes.
Rev. Proc. 2007-44 sets forth procedures for issuing opinion, advisory, and determination letters and describes the five-year remedial amendment cycle for individually designed plans and the six-year remedial amendment cycle for preapproved plans. In addition, Sec. 5.05 of Rev. Proc. 2007-44 provides the deadline for timely adoption of an interim amendment or discretionary amendment.
Pursuant to Sec. 4 of Rev. Proc. 2007-44, the IRS intends to annually publish a Cumulative List to identify statutory, regulatory, and guidance changes that must be taken into account in submissions by plan sponsors to the agency for opinion, advisory, and determination letters whose submission period begins on February 1 following issuance of the Cumulative List.
As provided by Notice 2008-108, C.B. 2008-2, 1275, as an alternative to submitting a plan in Cycle D (Feb. 1, 2009-Jan. 31, 2010), a plan sponsor of a Cycle D plan whose first plan year beginning after Jan. 1, 2009, ends on or after Feb. 1, 2010, may defer submission of its plan until Cycle E (Feb. 1, 2010-Jan. 31, 2011). In order to defer submission of such a plan until Cycle E, an application for a determination letter must be timely filed in Cycle E. In such a case, the plan will be treated as having been filed within the plan’s remedial amendment period for the 2001 tax law and will be reviewed on the basis of the 2009 Cumulative List. However, such a plan will be treated as a Cycle E plan solely for this initial cycle, and all subsequent submissions will be made in Cycle D. In addition, Rev. Proc. 2009-36, I.R.B. 2009-35, 304, provides that the sponsor of an individually designed governmental plan may make a one-time election to be in Cycle E (instead of Cycle C), as the initial remedial amendment cycle for the plan under the 2001 tax law.
The 2009 Cumulative List in Notice 2009-98 informs plan sponsors of the issues that the IRS has specifically identified for review in determining whether a plan filing in Cycle E has been properly updated. Specifically, the 2009 Cumulative List reflects law changes under the 2001 tax law (with technical corrections made by the Job Creation and Worker Assistance Act of 2002); the Pension Funding Equity Act of 2004; the American Jobs Creation Act of 2004; the Katrina Emergency Tax Relief Act of 2005; the Gulf Opportunity Zone Act of 2005; the Pension Protection Act of 2006; the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007; the Heroes Earnings Assistance and Relief Tax Act of 2008; the Emergency Economic Stabilization Act of 2008; and the Worker, Retiree, and Employer Recovery Act of 2008.
In Notice 2009-98, the IRS states that it will not consider in its review of any determination letter application for the submission period that begins Feb. 1, 2010, any: (1) guidance issued after Oct. 1, 2009; (2) statutes enacted after Oct. 1, 2009; (3) qualification requirements first effective in 2011 or later; or (4) statutory provisions that are first effective in 2010, for which there is no guidance identified in the notice. However, in order to be qualified, a plan must comply with all relevant qualification requirements, not just those on the 2009 Cumulative List.
For further information on Notice 2009-98, contact Angelique Carrington via e-mail at RetirementPlanQuestions@irs.gov.
For more information on this and related topics, consult the CCH Pension Plan Guide, CCH Employee Benefits Management, and Spencer's Benefits Reports.
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