Plan administrators may need to set their clocks back following recent IRS Guidance clarifying plan amendment deadlines for plan changes required or permitted by SECURE and SECURE 2.0.
Key Takeaways:
- The deadline to adopt a required plan amendment varies depending on its inclusion on the IRS’s annual RA List
- The deadline to adopt discretionary plan amendments generally remains December 31, 2026
- Identifying required and discretionary plan amendments and determining the applicable deadline requires careful consideration and guidance
- The IRS will include further clarification of the SECURE and SECURE 2.0 deadlines in its future RA Lists
The Internal Revenue Service (IRS) recently issued guidance in an Employee Plans newsletter (the “IRS Newsletter”) clarifying how to determine the deadline for adopting plan amendments related to the Setting Every Community Up for Retirement Enhancement Act of 2019 (“SECURE”) and the SECURE 2.0 Act of 2022 (“SECURE 2.0”). The IRS Newsletter clarifies that the key distinction in determining the deadline for adopting plan amendments is whether the amendment is required or discretionary.
Required plan amendments must be adopted by the deadlines set forth in the IRS’s annual Required Amendments List (the “RA List”), per Rev. Proc. 2022-40.[1] Discretionary plan amendments that plan sponsors have elected to implement on or prior to December 31, 2026 must be adopted by the original December 31, 2026 deadline, with certain exceptions.
Required Plan Amendments
The rules applicable to required plan amendments vary depending on when each required provision is included on the annual RA List. The deadline for adopting required plan amendments is generally the last day of the second calendar year that begins after the issuance of the RA List on which the provision appears.[2]
In the 2025 RA List, Notice 2025-60, the IRS explains that changes in qualification requirements that cannot reasonably be reflected in the plan language, without additional guidance, will not be listed on an RA List until that guidance is issued and has become applicable. For example, the Roth catch-up requirements under section 603 of SECURE 2.0 are expected to appear on the 2027 RA List (when the final Roth catch-up regulations generally become applicable), and, accordingly, the amendment deadline for those requirements generally will be December 31, 2029.
The same approach applies to the following required SECURE and SECURE 2.0 provisions, which will not appear on an RA List until the IRS issues final regulations:
- Automatic enrollment requirements imposed by section 101 of SECURE 2.0
- Long-term part-time requirements imposed by section 125 of SECURE and section 112 of SECURE 2.0
- Required minimum distribution requirements imposed by SECURE and SECURE 2.0 provisions that have not already appeared on an RA List
Discretionary Plan Amendments
The rules applicable to discretionary plan amendments differ significantly from those applicable to required plan amendments. The deadline for adopting discretionary plan amendments is generally the last day of the plan year in which the provision is put into operational effect.[3]
Most recently, through Notice 2024-2, the IRS extended the plan amendment deadline for SECURE and SECURE 2.0 discretionary provisions that are implemented on or before December 31, 2026. For most plans, those amendments must now be adopted by December 31, 2026.[4] If a discretionary provision is put into effect after December 31, 2026, the deadline for the applicable amendment is the last day of the plan year in which it is put into effect.
The IRS Newsletter contains a helpful example: If a plan[5] began to permit participants to designate certain matching and nonelective contributions as Roth contributions beginning in the 2023 plan year, as permitted (but not required) under section 604 of SECURE 2.0, a plan amendment implementing that discretionary provision would need to be adopted by December 31, 2026 (rather than by the end of the 2023 plan year).
Please contact a member of Dinsmore’s Compensation & Benefits team or your plan’s legal counsel to determine how this may impact your plan(s).
[1] See Rev. Proc. 2022-40 §§ 5.03(1)(b), 5.03(2)(b), and 6.01.
[2] See IRS Newsletter (“Required amendments”).
[3] See IRS Newsletter (“Discretionary amendments”).
[4] Later deadlines apply to collectively bargained plans, governmental plans, and section 403(b) plans maintained by a public school.
[5] A plan other than a collectively bargained plan, governmental plan, or section 403(b) plan maintained by a public school.