IRS Notice 2022-33 Extends Deadlines for Amending Retirement Plans for the SECURE Act and the CARES Act | Practical Law

IRS Notice 2022-33 Extends Deadlines for Amending Retirement Plans for the SECURE Act and the CARES Act | Practical Law

IRS Notice 2022-33 extends the deadlines for amending a retirement plan or individual retirement arrangement (IRA) to reflect certain provisions of the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act), the Bipartisan American Miners Act of 2019, and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

IRS Notice 2022-33 Extends Deadlines for Amending Retirement Plans for the SECURE Act and the CARES Act

by Practical Law Employee Benefits & Executive Compensation
Published on 04 Aug 2022 • USA (National/Federal)
IRS Notice 2022-33 extends the deadlines for amending a retirement plan or individual retirement arrangement (IRA) to reflect certain provisions of the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act), the Bipartisan American Miners Act of 2019, and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).
On August 3, 2022, the IRS issued Notice 2022-33, which modifies Notice 2020-68 and Notice 2020-86 to extend the deadlines for amending a retirement plan or individual retirement arrangement (IRA) to reflect certain provisions of the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) and the Bipartisan American Miners Act of 2019 (Miners Act), which were included in the Further Consolidated Appropriations Act, 2020, and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act)
Under Notice 2022-33, the extended amendment deadline for a qualified retirement plan that is not a governmental plan for the SECURE Act, the Miners Act, and the CARES Act is December 31, 2025.
To learn more about the SECURE Act and CARES Act, see:

Prior IRS Guidance, Including Notices 2020-68 and 2020-86

In September 2020, the IRS issued Notice 2020-68, which provides guidance on several SECURE Act provisions affecting retirement plans, as well as Section 104 of the Miners Act (see Legal Update, IRS Notice 2020-68 Provides Guidance on SECURE Act and Miners Act Provisions Affecting Retirement Plans). Among other provisions, Notice 2020-68 provides Q&A guidance on the deadline for amending qualified plans, 403(b) plans, governmental 457(b) plans, and IRAs to reflect the SECURE Act and Section 104 of the Miners Act (see Practice Notes, Code Section 403(b) Plans: Overview and State and Local Retirement Plans: Overview). Under Notice 2020-68:
  • The deadline to amend a plan for provisions of the SECURE Act, the regulations thereunder, or Section 104 of the Miners Act was:
    • for a qualified plan that is not a governmental plan within the meaning of Code Section 414(d), or an applicable collectively bargained plan, the last day of the first plan year beginning on or after January 1, 2022;
    • for a governmental plan within the meaning of Code Section 414(d), or an applicable collectively bargained plan, the last day of the first plan year beginning on or after January 1, 2024; and
    • for a governmental plan under Code Section 457(b), the last day of the first plan year beginning on or after January 1, 2024, or, if applicable, the first day of the first plan year beginning more than 180 days after the date of notification by the Secretary of the Treasury that the plan was administered in a manner that is inconsistent with the requirements of Code Section 457(b).
  • The deadline to amend a plan for provisions of the SECURE Act or the regulations thereunder was:
    • for a 403(b) plan that is not maintained by a public school, the last day of the first plan year beginning on or after January 1, 2022; and
    • for a section 403(b) plan that is maintained by a public school, the last day of the first plan year beginning on or after January 1, 2024.
  • The deadline to amend a trust governing an IRA that is an individual retirement account or the contract issued by an insurance company with respect to an IRA that is an individual retirement annuity for provisions of the SECURE Act or the regulations thereunder was December 31, 2022, or such later date as the Secretary of the Treasury prescribes in guidance.
In December 2020, the IRS issued Notice 2020-86, which provides Q&A guidance on provisions under the SECURE Act affecting safe harbor plans, including the plan amendment timing provisions of Section 601 of the SECURE Act (see Legal Update, IRS Notice 2020-86 Provides Guidance on SECURE Act Provisions Affecting Safe Harbor Plans).

Notice 2022-33

Notice 2022-33 extends several plan amendment deadlines.

Amendments for the SECURE Act and Miners Act

Under Notice 2022-33, the new deadline to amend a qualified retirement plan, including an applicable collectively bargained plan, that is not a governmental plan for provisions of the SECURE Act, the regulations thereunder, or Section 104 of the Miners Act is December 31, 2025. Section 104(a) of the Miners Act lowered the minimum age for in-service distributions from a qualified pension plan from age 62 to age 59 ½. For information on the SECURE Act, see SECURE Act Provisions Affecting Retirement Plans Toolkit.
The deadline to amend a governmental retirement plan (within the meaning of Code Section 414(d)) is 90 days after the close of the third regular legislative session of the legislative body with the authority to amend the plan that begins after December 31, 2023.
In general, the deadline to amend a 403(b) plan that is not maintained by a public school, including an applicable collectively bargained plan, for provisions of the SECURE Act or the regulations thereunder is December 31, 2025. The deadline to amend a 403(b) plan that is maintained by a public school is 90 days after the close of the third regular legislative session of the legislative body with the authority to amend the plan that begins after December 31, 2023.
The deadline to amend a governmental retirement plan under Code Section 457(b) for provisions of the SECURE Act, the regulations thereunder, or Section 104 of the Miners Act is the later of:
  • 90 days after the close of the third regular legislative session of the legislative body with the authority to amend the plan that begins after December 31, 2023.
  • If applicable, the first day of the first plan year beginning more than 180 days after the date of notification by the Secretary of Treasury that the plan was administered in a manner that is inconsistent with the requirements of Code Section 457(b).
The deadline to amend the trust governing an IRA that is an IRA or the contract issued by an insurance company with respect to an IRA that is an individual retirement annuity for provisions of the SECURE Act or the regulations thereunder is December 31, 2025, or such later date as the Treasury Secretary provides in guidance.
Amendments to a retirement plan to reflect a provision of the SECURE Act or the regulations thereunder that are made on or before the extended dates provided by Notice 2022-33 will not cause the retirement plan to fail to satisfy the anti-cutback requirements of Code Section 411(d)(6) or ERISA Section 204(g).

Amendments for the CARES Act

Notice 2022-33 extends the deadlines for amending a retirement plan to reflect the provisions of Section 2203 of the CARES Act, which provided for a waiver of required minimum distributions for defined contribution plans and IRAs for 2020.
The deadline for amending a retirement plan that is not a governmental plan is December 31, 2025.
The deadline for amending a retirement plan that is a governmental plan is either:
  • 90 days after the close of the third regular legislative session of the legislative body with the authority to amend the plan that begins after December 31, 2023.
  • If later, with respect to a governmental plan under Code Section 457(b), the first day of the first plan year beginning more than 180 days after the date of notification by the Treasury Secretary that the plan was administered in a manner that is inconsistent with the requirements of Code Section 457(b).

2023 Required Amendments List

In a footnote, Notice 2022-33 states that it is anticipated that certain guidance issued under the SECURE Act will appear on the 2023 Required Amendments List. It is anticipated that sponsors will be able to adopt all SECURE Act, Miners Act, and CARES Act amendments described in the Notice on a single date.

Practical Implications

Sponsors and administrators of qualified retirement plans, governmental plans, 403(b) plans, 457(b) plans, and IRA trusts should review the guidance provided in Notice 2022-33 so that they can amend their plans for the SECURE Act, Miners Act, and CARES Act within the new deadlines.