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While it makes sense not to sign an amendment in the interim unless the plan is terminating, you need to be sure to keep track of actual administrative decisions in the meantime. The client or TPA may want to mark the proposed amendment as PROPOSED or DRAFT or something like that with a plan year notated, and then complete it simply as a means of denoting for the file what elections were made. It is possible that preapproved plan providers are ... um, providing ... something for this purpose. Just sayin' ....

The amendment date should be after the date the practitioner is planning to retire.😁 (If there is anyone reading this who doesn't have a sense of humor, please ignore the above comment) But seriously, to a certain extent the amendment date may also be driven by other factors - staffing, number of plans, other projects such as restatements, etc.

The pre-approved basic plan document we use (and is used by a very large number of institutional providers) defines a hardship distribution as "an in-service distribution upon the occurrence of a Hardship event". The selection of hardship distributions in the adoption agreement is under the section titled " AVAILABILITY OF IN-SERVICE DISTRIBUTIONS". For plans that use this document, hardships are not available to terminated employees. Some of the choices for distributions available to terminated employees include timing that could extend the timing of the availability of the termination distribution. For example, the plan could require a participant to incur a set number of breaks in service, or to have to wait until the next annual valuation date. The plan also allows a choice to pay at Normal Retirement Age, death or disability. As oft-repeated, read the plan document.

Yes, great points. We have plan sponsors sign off on "Plan Administrator Memorandums" that itemize their desires on administrative items that are implemented in practice now but amended for later, so there is file documentation when it comes time for the amendment.

My only response is to shake my head and mutter "only in Texas...." After all, aren't they the ones who are intentionally and militarily refusing to abide by a SCOTUS ruling.... For what it's worth, the House itself gets to decide what it's rules are and can enforce or not enforce the quorum rules affirmatively or negatively. I would suggest that enforcement of the House's quorum rules is reserved to the members of the House. In other words, if a House member doesn't object, then the House has made a defacto determination that a quorum exists, or that it doesn't apply at the time. "After the fact" determinations are inapplicable, inappropriate, and inconsistent with a Federal form of government. Individual states have no power to overturn what the legislative body has done. Constitutional determinations can only be made on the basis of the text of the Constitution, not the internal (or inferno) rules of a specific body....

Interesting. I'm completely unqualified to opine on the legal technicalities - but what (for me) passes as common sense, leads me to ask why in the world would an employer attempt to litigate this when the only practical effect is allowing certain employees to defer ONLY - no employer contributions, top heavy, etc., etc.? Seems like the expense, and hassle, is the losing end of a bad deal.

The amendment you have now will be different by the time the deadline hits (2026 or later for governmental or multiemployer plans). But, there's no harm adopting it as long as everyone is aware you'll be re-adopting another amendment. When you do amend in 2026 (generally wait as long as possible to capture the latest updates), you have to retroactively reflect how the plan was operated. Keeping track of that may be tough, especially when there is a change in service providers. So, adopting the amendment might serve as a way to memorialize what was done. But if you go that route, presumably you'd also want to do that for the other changes (CARES and SECURE 2.0). A checklist also works. I wouldn't rely solely on employee communications because those reflect only the material changes to the plan.

I wouldn’t read too much into 26 C.F.R. § 1.401(k)-1(d)(3)’s imprecise use of the word employee. There are many Federal income tax regulations that use the word “employee” when the situation could refer to a participant who no longer is the relevant employer’s employee. For example, 26 C.F.R. § 1.401(a)(9)-2 (“Distributions commencing during an employee’s lifetime”) widely uses the word “employee” for rules that often apply regarding a participant who no longer is the relevant employer’s employee. One might consider the possibility of a hardship distribution, even for a participant who is severed from employment, if no other condition entitles the participant to a distribution.

You have until 11/30/2024 to make the plan SHNE for 2024 with a 3% contribution. From 12/1/2024 until 12/31/2025, you can make the plan SHNE for 2024 with a 4% contribution.

Adding to the chaos, DC Cycle 4 technically has started already but the IRS is not yet open for business to receive submissions. The IRS expected to open the submission window from Feb. 1, 2024, through Jan. 31, 2025, but I have not seen an announcement. If the window is open soon, we likely will be doing Cycle 4 amendments for everyone with the restatement period running from the latter part of 2026 into 2028. The December 31, 2026 hits right around the beginning of that restatement period. The LRMs were updated this January and are available here https://www.irs.gov/pub/irs-tege/dc-lrm0124.pdf if anyone has time to spare to read through 149 pages. If the submission window does open soon, imagine how much guidance has yet to be issued that will not be in the LRMs included in the Cycle 4 documents.

I believe whatever provisions applied at the time the distribution should have been or had to have been made under the terms of the plan should be applied when corrective distribution is made.