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I agree with Lou S. We have often had clients adopt interim amendments after the plans were terminated (if they were still adopted before the amendment deadline). In most cases, it was because we didn't yet have all the guidance we needed or wanted to adequately draft the interim amendment at the time of termination. I'm talking within the same year as the termination. (We would not terminate a plan and then adopt an interim amendment two years later.) We always make sure to warn the plan sponsor that they must adopt the amendment and that it will be after the termination date so that they understand the importance of signing the amendment when we send it later. If you submit a termination application to IRS, they may require the plan sponsor to adopt an amendment post-termination to bring it up to date with current law provisions that they don't think have been included so clearly a plan can be amended after the termination date. I do not think a VCP application is necessary.

My thoughts are adopt the conforming interim amendments now and be done with it, assuming you are talking about interim amendment deadlines that haven't already passed like SECURE and CARES here not say Hardship Interim amendments.

If one assume the Labor department’s rules about due dates for Form 5500 reports and summary annual reports are not contrary to law, the rule calls an administrator to furnish the SAR “within nine months after the close of the plan year.” 29 C.F.R. § 2520.104b-10(c) https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XXV/subchapter-C/part-2520/subpart-F/section-2520.104b-10#p-2520.104b-10(c). The Treasury department’s Saturday-Sunday-holiday rule applies to “the performance of any act” required or permitted “under authority of any internal revenue law[.]” 26 C.F.R. § 301.7503-1. For a pension plan’s Form 5500 report, the Labor department made no similar rule. But the three-agency Instructions for a Form 5500 report include the Saturday-Sunday-holiday rule. I’m unaware of any Labor department rule that allows a Saturday-Sunday-holiday grace for furnishing a summary annual report. For a report on a plan that ended its accounting year on December 31, 2021, I’d advise the administrator to furnish the SAR today. That said, if the administrator furnishes the SAR next Monday, one wonders that an EBSA investigator reviewing that conduct might prefer not to challenge the timeliness of that SAR (unless there are further reasons to find fault with the plan’s administrator, or its service provider).

Consider whether, even if not all tax-qualifying amendments were done by the date of the resolution that discontinued the plan, it might be good enough that the amendments are done before the plan terminates by paying or delivering its final distributions. Understand that the Treasury department’s remedial-amendment concept might provide no relief concerning ERISA §§ 402-404. On a few of many related points: Has the plan’s administrator yet communicated to participants, beneficiaries, and alternate payees that the plan is ended and will pay a final distribution? If that communication has happened, would the not-yet-done amendment affect anything that was communicated, or affect any choice available to a distributee? If so, the plan’s administrator might evaluate whether a further communication is needed or appropriate. Also, if any to-be-amended provision was not explained in a previous summary plan description or summary of material modifications, the plan’s administrator might evaluate whether it must or should write and furnish a revised SPD or SMM.

I'd look at it similar to an RMD, the determination value is fixed to the anniversary date, you can't chase the minimum fractional value throughout the distribution period. If this is a question and you have an IDP doc, stick that aspect into the provision. It's definitely determinable and if strictly followed would be non-discriminatory.

This is false. Misleading at best.

Maybe not quite on-point, but an example from a defined benefit plan we terminated a few years ago. Participant's estimated lump sum when distribution election forms were handed out was less than $5,000, so spouse consent form was not included. When final distributions were processed, lump sum distribution was more than $5,000. Plan termination was audited by the PBGC. They asked why there wasn't a spouse consent for this participant. Explained timeline of what happened, and they said OK and didn't ask for anything else.

Why not have the new entity be an adopting employer than remove the old entity after it shuts down?

Hey Peter- Completely agree with your view but in the example you provided, IRA holder sold the asset for FMV. There was no self dealing in which the soon to spouse received special benefits from the purchase of the property. To me it would be no different if the client took an in-kind distribution of the property and reassigned the property into his own name at FMV. Now, say that the soon to be spouse obtained the funds from a loan that was in her and the client's name, that's a different story and I would view that as a PT but if the soon to be spouse obtained the funds by her merits only and purchased the asset at FMV, there is no PT because there is no disqualified party involved in the transaction and no self-dealing. DOL Opinion Letter 88-018A allowed allowed the IRA owner to issue promissory notes to a company that the IRA owner was 48% owner in. The DOL did caution the self-dealing aspect b/c of the IRA owners large ownership in the company that was receiving the loan but allowed the transaction to the LLC despite the fact the IRA owner was 48% owner of the LLC. Greenlee v Commissioner, T.C. Memo 1996-378 also discusses the disqualified party matter (Greenlee was 18% owner and an independent advisor was used to determine the terms of the loan). Based on these these and other cases, it seems like the DOL is pretty firm in its application of a disqualified person and a soon to be spouse would not be a disqualified person. But what might make this a PT would be if there is any self-dealing for the client (e.g. did he or is he part of the funding used to purchase the property, is he giving her a deal) but if self-dealing is not present, than I don't see PT in this case.

Peter, I understand what you are driving at with respect to your first post. Could you perhaps look at it in the following way: if the participant's account balance does not exceed the specified dollar amount threshold as of the last day of the plan year, then the involuntary cashout provision is invoked. What happens subsequently (with respect to investments) should not cause the account to be precluded from being cashed out. Also, in an involuntary cashout scenario, you mentioned the 402(f) notice. My understanding is that, in that scenario, the account balance is simply distributed to the participant in the form of a single sum. Regarding your second post, since the participant is entitled to elect whether or not to do a direct rollover to another eligible retirement plan to the extent the account exceeds $1,000 but does not exceed $5,000, I could see that that would take slightly longer a period of time between the end of the plan year and when the distribution/rollover is actually implemented. However, if the account balance as of the close of the plan year does not exceed $5,000, the plan could still implement the distribution/direct rollover, in spite of interim investment gains.

kmhaab, when you asked about a plan that has no participants, I guessed you used the word participant not for a technical or legal meaning under ERISA or the Internal Revenue Code, but the way many people use it, especially about § 401(k) arrangements, to refer to those who make an elective-deferral contribution. ERISA § 3(7) defines participant to include an employee “who is or may become eligible to receive a benefit[.]” The Form 5500 Instructions (hyperlink above) include in a count of a retirement plan’s participants “individuals who are eligible to elect to have the employer make payments [elective-deferral contributions] under a Code section 401(k) qualified cash or deferred arrangement.”