Hardship Distributions / Elective Deferral Prohibition

[hch4cpa]

Does a Plan need to actually make amendment the Plan Document to eliminate the requirement that elective deferrals be put on hold for 6 months? 

[Luke Bailey]

Eventually, hch4cpa, sure, but not yet. It is on the Operational Compliance List (OCL), but not the Required Amendments List (RAL). See https://www.irs.gov/retirement-plans/operational-compliance-list, and https://www.irs.gov/retirement-plans/required-amendments-list.

[Patricia Neal Jensen]

I defer to Luke's wisdom, but really?  If the plan document says there is a 6 month deferral suspension, it would be ok to ignore that?

[Luke Bailey]

Patricia, this is the new system. There has always been a tension between the policy goal of having the plan administered in accordance with its terms, and (b) giving employers time to amend their plan documents after changes in legislation. Under the prior system, which put greater emphasis on timely amendment, we had to make "good faith" amendments in the absence of guidance, which had its own issues.

In Rev. Proc. 2016-37, perhaps in part because the IRS was largely abandoning the process of issuing individual determination letters, it decided to provide a very generous and simple system for amendments. After the effective date of a change in law, you have to comply in operation with what's on the Operational Compliance List. You have to amend only after IRS has put the new requirement on the Required Amendments List, which generally will be only after the IRS has issued regulations, a model amendment, or other guidance. Simple and generous, because you can find the current OCL or RAL pretty readily on internet.

Actually, for this specific issue (6-month suspension of elective deferrals after hardship), you can do either (i.e., apply the suspension that's in your plan document, or not) for 2019, but must do so on a consistent basis. No longer applying the suspension is mandatory for 2020. So says the proposed regs issued at end of last year. https://www.federalregister.gov/documents/2018/11/14/2018-24812/hardship-distributions-of-elective-contributions-qualified-matching-contributions-qualified