411(d)(6) protected benefit?

[jkharvey]

The plan currently provides for distributions to be made "as soon as administratively feasable after termination of employment". ER wants to amend to provide for distributions "on or after April following the Plan Year of termination of employment."

Would making this change violate 411(d)(6)? Can it only be made for terminations after the adoption of the amendment or can amendment be made retro? The "administratively feasable" language was put in the GUST amendment in error and ER wants the language to read "on or after April".

[Archimage]

I think that would be fine. This is not a benefit that is accrued by a participant.

[David]

I always believed that if the plan allowed for immediate distributions and that if immediate distributions were actually made, then the sponsor was stuck with that distribution policy, at least with respect to the benefits accrued to the participants in the plan at the point of amending it to provide a more restrictive distribution policy. Otherwise there could be discrimination issues.

If no distributions were ever made, then I'm not sure about restrictions on amending to a more restrictive distribution policy.

[KJohnson]

I'm not sure I agree. I don't think this is an accrued benefit question but a question of the elimination of an optional form of benefit. You cannot have a change the timing of an optional form of benefit unless it is deminimis. See the following from the 1.411(d)-4 regs.

(ix) De minimis change in the timing of an optional form of benefit.

A plan may be amended to modify an optional form of benefit by changing the timing of the availability of such optional form if, after the change, the optional form is available at a time that is within two months of the time such optional form was available before the amendment. To the extent the optional form of benefit is available prior to termination of employment, six months may be substituted for two months in the prior sentence.

Thus, for example, a plan that makes in-service distributions available to employees once every month may be

amended to make such in-service distributions available only once every six months. This exception to section 411(d)(6) relates only to the timing of the availability of the optional form of benefit. Other aspects of an optional form of benefit may not be modified and the value of such optional form may not be reduced merely because of an amendment permitted by this exception.

[KJohnson]

I meant I wasn't sure I agreed wth Archimage. David got in his post while I was taking a call.

[Archimage]

I stand corrected. What's to keep someone from amending their plan for two additional months, make another amendment for two additional months, etc.?