Plan Amendments

[Guest AJM 34]

I have a Calendar Year plan, 1/1/06 - 12/31/06.

The Plan failed the ADP test, and want to do a QNEC.

The Plan Doc calls for the QNEC to be based on thePro-Rata Method Using Bottom-Up Based On Compensation. Can I do a Plan Amendment now to change the QNEC method to the Per Capita Method?

[austin3515]

Too late. Would need to be executed before year-end, and that's assuming they need to be employed on 12/31 to get an allocation! If everyone gets it, regardless of employment status and/or hours worked, then the amendment must be executed before the plan year even begins!! Essentially, if someone has accrued a right to an allocation, you can't amend the Plan to take it away.

[rcline46]

Big OOPSSSSSSS - The amendment for the final 401(k) regulations had to be executed prior to the end of 2006. Find the amendment and see how it modified the QNEC rules for this particular plan.

[austin3515]

I didn't read the post closely enough - all I saw as that he wanted to switch from pro-rata to per-capita!

[Blinky the 3-eyed Fish]

My understanding is the actual deadline is the due date of the tax return for 2006. Of course, the new 401(k) regs must be satisfied. I don't recall any special 411(d)(6) protection, so you very well could end up with a very large QNEC that must satisfy both the document and the new 401(k) rules.

[Bird]

I agree with Austin's first post; I don't see where he misread anything. Yes, the final 401(k) regs amendment needs to be reviewed, and that should give the final answer because this kind of change falls under the discretionary amendment concept introduced in Rev Proc 2005-66 - any changes need to be made before the end of the year.