Model Section 436 Amendment Language?

[rocknrolls2]

Has anyone seen, drafted, been involved with or otherwise dealt with drafting model Section 436 language?

[Blinky the 3-eyed Fish]

Seen.

[Guest bobolink]

I've asked this before and had lots of looks but no response, so trying again: Is there any consensus about the detail that should be in the 436 provision. I've seen broad incorporation by reference type sections and detailed play by play. Since the regs didn't help except by saying there is a 411(d)(6) problem and they'll get to it ... which road are you taking?

[Guest BL333]

Is there anyone else who can comment on how detailed they are getting with 436 amendments?

[Guest bobolink]

I am the OP. A lawyer on last week's ALI/ABA teleconference on 436 stated that he thinks there are at least 14 items which should be included in the amendment. He seemed to think if the regs say "plan must provide" it means "plan language should provide for". He made at least two substantive errors when discussing the regs, so I'm not giving him much weight.

My current thinking is that there are so many options under the regs that to draft a helpful, detailed amendment would require an indepth conversation with the client and time is running out for that. Anything less that an amendment that results from such a conversation will require consulting the regs and the client at the time restrictions apply. We have one version that incorporates all the definitions by reference and then outlines the operative features. To administer, you'd still have to go back to the statute, regs and client. Therefore, why not just have the one paragraph option "if these rules apply, we will comply".

I'm not settled and it seems unlikely that any further guidance will come in time to be helpful.

[gle318612]

I assume everyone saw the one-year reprieve on the need for these amendments per IRS Notice 2009-97 released last Friday (12-1--09) and which can be gotten to at this URL http://www.irs.gov/pub/irs-drop/n-09-97.pdf

[Blinky the 3-eyed Fish]

It doesn't cover everything that needs to be amended, so in my mind, it's largely a worthless promulgation.

[Mike Preston]

Can you give an example of a provision that, if not amended by 12/31/2009, would create a problem for a plan sponsor?

[Blinky the 3-eyed Fish]

How about the 417(e) changes?

[Mike Preston]

I don't know. I'll check. Anything on the DC side?

[Blinky the 3-eyed Fish]

Since the extension only applies to "the deadline for amending applicable defined contribution plans, within the meaning of § 401(a)(35)(E), to meet the requirements of § 401(a)(35), relating to diversification requirements for certain defined contribution plans.", I would say it's a problem if you don't amend everything else PPA changed for DC plans.