EGTRRA and anti-cutback rules

[Guest JDL]

Hello -

If anyone could help me with this question, I would sincerely appreciate it.

EGTRRA added 411(d)(6)(E) to the Code which allows for the elimination of an optional form of distribution (i.e., an annuity), provided a single lump sum payment (of the same amount and at the same time) is available to the plan participant. The regs governing 411(d)(6), which were issued prior to EGTRRA, provide that an amendment eliminating an optional form of payment will not be effective until the earlier of (1) the 90th day after the participant has been furnished with a sufficient summary of the amendment or (2) the first day of the second plan year following the plan year in which the amendment was adopted.

1.411(d)-4(e).

Therefore, due EGTRRA's addition of 411(d)(6)(E), is it still necessary to provide the notice and wait 90 days, as is stated in the regs, or are the regs trumped by the new code provision? I haven't been able to find any guidance on this. We have a client who will be performing a plan to plan merger and we aren't sure if we need to provide this notice and wait the 90 days. Thanks in advance for any comments.

[Archimage]

I am not 100% sure about the 90 day period but you still must give a notice in the form of an SMM or SPD when you do amend the plan. I tend to think you still need to use the 90 day period.