Any problem in DC document not amended to reflect repeal of 415(e), an

[John A]

Is there any problem if a defined contribution plan document reads that the DC plan will be reduced for the 415(e) limit and the plan document has not been amended to reflect the repeal of 415(e)?

[Guest Mr. X]

If the document references the actual 415(e) code section instead of say spelling out the DC or DB fraction, then the repeal of 415(e) allows for accruals or contributions that are not limited by 415(e). However, for documents that do not reference the code section, an amendment is needed for affected participants to not be limited by 415(e).

[AndyH]

Agree. This has been referred to as "self destructing" language.

[John A]

If the "self-destructing language" is not present, then when does the amendment have to be adopted? Does the plan sponsor have until the end of the GUST remedial amendment period, or must the amendment be adopted sooner?

[AndyH]

I'm not sure it has to be removed at all. If NHCE's are affected, however, it may make the plan subject to general testing.

But, you can't take advantage of the repeal for a particular year unless the plan is amended in that year. You do not have the remedial amendment period to amend this retroactively because it is not a disqualifying provision.

[Actually, I better hedge on that. That's my understanding-someone please correct me if that last statement is incorrect. I know it is correct for a DB plan.]

[John A]

You're probably right that it does not have to be removed at all. However, if a plan sponsor wanted it to be removed for the calendar year 2000 plan year, when would the amendment have to be adopted?

[AndyH]

I need to correct my earlier comments on the amendment. It appears to me that Revenue Procedure 99-23 does deem a 415(e) amendment to be a disqualifying provision.

It seems to say that you have until the end of the GUST remedial amendment period to retroactively amend to repeal the 415(e) application, retroactive to the first day of the first year that the repeal was applied in operation. So, the amendment due date appears to be 12/31/2001 for 2000, although it does not have to be repealed at all, or can be repealed effective later provided the plan satisfies the nondiscrimination rules, which could include the 401(a)(4) general test if NHCE's are affected.

I am finding conflicting analysis of this, however, so I'd suggest reading RP 99-23 and Notice 99-44 for yourself.