September 28, 2022

Newly released IRS Notice 2022-45 extends the plan amendment deadline for provisions of the Coronavirus Aid, Relief and Economic Security (CARES) Act (Pub. L. No. 116-136) that allowed retirement plan sponsors to offer special penalty-free distributions, set a higher plan loan cap and suspend loan repayments for participants affected by the COVID-19 pandemic. The extension also applies to provisions of the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (Div. EE of Pub. L. No. 116-260) that allowed penalty-free distributions to participants affected by certain disasters. 

New amendment deadlines. Amendments for these provisions now have the following deadlines:

  • A sponsor of a nongovernmental qualified or 403(b) plan not for public school employees must amend its plan by Dec. 31, 2025. This deadline applies to both nonbargained and collectively bargained plans.

  • A sponsor of a governmental qualified or 457(b) plan or a 403(b) plan for public school employees must amend its plan within 90 days after the legislative body with authority to amend the plan closes the third regular legislative session that begins after Dec. 31, 2023. (Certain 457(b) plan sponsors making amendments to resolve compliance issues may have a later deadline.)

This is the same extension that IRS granted in Notice 2022-33 for amendments reflecting the CARES Act’s suspension of 2020 required minimum distributions. That notice also extended the amendment deadline for the Setting Every Community Up for Retirement Enhancement (SECURE) Act (Div. O of Pub. L. No. 116-94) and the Bipartisan American Miners Act (Miners Act) of 2019 (Div. M of Pub. L. No. 116-94) provisions lowering the permissible age for in-service distributions from pension plans to 59-1/2.

Anticutback relief. The CARES Act grants anticutback relief for plan amendments adopted by the applicable deadline. Notice 2022-45 confirms that amendments for the CARES Act (and any related regulations) adopted by the extended deadline will receive the anticutback relief.

Preapproved plans. Unlike the earlier extension notice, Notice 2022-45 is silent on whether its extension applies to interim and discretionary amendments to preapproved plans. However, the new notice does say that IRS anticipates that sponsors now can adopt amendments for the CARES, SECURE and Miners acts on a single date. This presumably includes employers using preapproved plan documents.

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Brian J. Kearney
by Brian J. Kearney

Principal, Mercer’s Law & Policy Group

Matthew Calloway
by Matthew Calloway

Principal, Mercer’s Law & Policy Group

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