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https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR2b7577e2af5412b/section-1.436-1 URL: https://www.ecfr.gov/current/title-26/part-1/section-1.436-1#p-1.436-1(a)(3)(ii)(B) Citation: 26 CFR 1.436-1(a)(3)(ii)(B) Application of section 436 after termination of a plan — (A) In general. Except as otherwise provided in paragraph (a)(3)(ii)(B) of this section, any section 436 limitations in effect immediately before the termination of a plan do not cease to apply thereafter. (B) Exception for payments pursuant to plan termination. The limitations under section 436(d) and paragraph (d) of this section do not apply to prohibited payments (within the meaning of paragraph (j)(6) of this section) that are made to carry out the termination of a plan in accordance with applicable law. For example, a plan sponsor's purchase of an irrevocable commitment from an insurer to pay benefit liabilities in connection with the standard termination of a plan in accordance with section 4041(b)(3) of the Employee Retirement Income Security Act of 1974, as amended (ERISA), and in accordance with 29 CFR 4041.28, does not violate section 436(d) or this section. __________________________________________________________________________________________________________________________________________________________________________________________________ Please indicate if unpredictable contingent event benefits form part of the exceptions for plan terminations.

We used the 436 IRS model amendment for a client. That client filed a determination letter upon terminating the plan. The IRS sent an inquiry asking for the amendment that was adopted to be amended to remove the incorporation by reference to the definitions in Sections 1.436-1(j)(1-9). I looked at that section and there is no explained definition. Where can I find that?

If a DBP is amended to provide for a benefit formula that would require the plan to pass nondiscrimination testing under IRC 401(a)(4), but that amendment is treated as if it were never adopted pursuant to Treasury Regulation Section 1.436-1(a)(4)(iv) because an AFTAP restriction under IRC 436© is in effect for the plan year that the amendment would have been effective, then is the DBP still subject to the nondiscrimination testing for the plan years that the restriction is in effect? 1. AFTAP for DBP not certified. 2. DBP treated as frozen due to presumption AFTAP less than 60%. 3. DBP amended to change benefit formula but cannot take effect during plan year because of IRC 436© restriction. 4. Plan amendment treated as never adopted. Is the amendment treated as never adopted solely for purposes of benefit accruals, such that the DBP still must pass nondiscrimination testing as if the change in the benefit accruals had been made (but for the treatment of the plan amendment as never adopted), or is the amendment treated as never adopted for all compliance and nondiscrimination testing purposes? A citation to the official authority would be very much appreciated!