Amendments for SECURE et al for Terminating ESOP

[Belgarath]

We have a client where we handle their 401(k). They also have an ESOP, which we don't handle. A law firm handles (or DID handle) the ESOP/document.

Short version - the business has been sold, and both plans need to be terminated. The law firm who handled the ESOP document has "resigned" from the ESOP document business. Now, we can't (or won't) amend the ESOP document. But I'm just curious - is a current ESOP termination amendment that includes SECURE/2./CARES amendment(s) similar to what is required for a 401(k) required? While they need to find another ESOP attorney or TPA, I'm just curious, and I've paid no attention to ESOP issues such as this. 

[Peter Gulia]

Turning on the business sale’s terms, there might be issues way beyond whether the ESOP’s documents are tax-qualified in form.

But to consider your question, an ESOP that seeks § 401(a) tax treatment has no less need on discontinuance and termination for current (without a remedial-amendment delay) provisions than does a § 401(a) profit-sharing plan.

Yet, consider too that an ESOP’s in-operation provisions implemented in reliance on a to-be-done-later remedial amendment might have used few or none of the optional provisions SECURE 2019, CARES, or SECURE 2022 permits.

Just to pick one example, an ESOP might not have changed its applicable age for a § 401(a)(9) required beginning date.

[Belgarath]

Thanks.