n-21-64.pdf

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2021 Required Amendments List for Individually Designed Qualified and Section 403(b)
Plans

Notice 2021-64

I. PURPOSE

This notice sets forth the 2021 Required Amendments List (2021 RA List). The
Required Amendments List (RA List) applies to both individually designed plans
qualified under section 401(a) of the Internal Revenue Code (Code) (qualified
individually designed plans) and individually designed plans that satisfy the
requirements of section 403(b) (section 403(b) individually designed plans).

Section 5.05 of Rev. Proc. 2016-37, 2016-29 IRB 136,
1
provides generally that,
except as otherwise provided by statute, or by regulations or other guidance published
in the Internal Revenue Bulletin, in the case of a qualified individually designed plan that
is not a governmental plan within the meaning of section 414(d), the remedial
amendment period for a disqualifying provision arising as a result of a change in
qualification requirements is extended to the end of the second calendar year that
begins after the issuance of the RA List in which the change in qualification
requirements appears. Similarly, section 5.03(1) of Rev. Proc. 2019-39, 2019-42 IRB
945,
2
provides generally that, except as otherwise provided by statute, or by regulations
or other guidance published in the Internal Revenue Bulletin, with respect to a form
defect in a section 403(b) individually designed plan that is not a governmental plan
within the meaning of section 414(d), the remedial amendment period arising as a result
of a change in section 403(b) requirements ends on the last day of the second calendar
year that begins after the issuance of the RA List on which the change in section 403(b)
requirements appears. Pursuant to these sections, and section 8.01 of Rev. Proc.
2016-37 and section 6.01 of Rev. Proc. 2019-39, December 31, 2023, generally is both
the last day of the remedial amendment period and the plan amendment deadline with
respect to (1) a disqualifying provision arising as a result of a change in qualification
requirements that appears on the 2021 RA List, and (2) a form defect arising as a result
of a change in section 403(b) requirements that appears on the 2021 RA List. Later
dates may apply to a governmental plan within the meaning of section 414(d) pursuant
to sections 5.06(3) and 8.01 of Rev. Proc. 2016-37 and sections 5.03(2)(c) and 6.01 of
Rev. Proc. 2019-39. References to qualification requirements and to section 403(b)

1
For purposes of this revenue procedure, references to Rev. Proc. 2016-37 are to Rev. Proc. 2016-37, as
modified by Rev. Proc. 2017-41, 2017-29 IRB 92, Rev. Proc. 2019- 20, 2019-20 IRB 1182, Rev. Proc.
2020-40, 2020-38 IRB 575, and Rev. Proc. 2021-38, 2021-38 IRB 425.
2
For purposes of this revenue procedure, references to Rev. Proc. 2019-39 are to Rev. Proc. 2019-39, as
modified by Notice 2020-35, 2020-25 IRB 948, Rev. Proc. 2020-40, and Rev. Proc. 2021-37, 2021-38 IRB
385.

2

requirements in Parts III and IV of this notice are referred to, separately and collectively,
as “requirements.”
3

II. BACKGROUND

Section 401(b) of the Code provides a remedial amendment period during which
a plan may be amended retroactively to comply with the qualification requirements
under section 401(a). Section 1.401(b)-1 describes the disqualifying provisions that may
be amended retroactively and the remedial amendment period during which retroactive
amendments may be adopted. That regulation also grants the Commissioner of Internal
Revenue the discretion to designate in guidance published in the Internal Revenue
Bulletin certain plan provisions as disqualifying provisions and to extend the remedial
amendment period.

Sections 5.05 and 5.06 of Rev. Proc. 2016-37 extend the remedial amendment
period for individually designed plans to correct disqualifying provisions that arise as a
result of a change in qualification requirements. Sections 5.05 and 5.06 provide that,
except as otherwise provided by statute, or by regulations or other guidance published
in the Internal Revenue Bulletin, those sections set forth the extended remedial
amendment period for disqualifying provisions. Under section 5.05(3), the remedial
amendment period for a plan that is not a governmental plan within the meaning of
section 414(d) is extended to the end of the second calendar year that begins after the
issuance of the RA List on which the change in qualification requirements appears.
Section 5.06(3) provides a special rule for governmental plans that may further extend
the remedial amendment period in some cases.

Section 8.01 of Rev. Proc. 2016-37 provides that the plan amendment deadline
with respect to a disqualifying provision described in section 5 of Rev. Proc. 2016-37 is
the date on which the remedial amendment period ends with respect to that
disqualifying provision.

Section 21.02 of Rev. Proc. 2013-22, 2013-18 IRB 985,
4
establishes an initial
remedial amendment period that permits an eligible employer to retroactively correct
form defects in its written section 403(b) plan.

Rev. Proc. 2017-18, as modified by Notice 2020-35, 2020-25 IRB 948, provides
that the initial remedial amendment period for a form defect in a section 403(b) plan
ends on June 30, 2020.

3
In order to help plan sponsors achieve operational compliance with changes in requirements, the IRS
provides the Operational Compliance List, which is a list of changes in both qualification requirements
and section 403(b) requirements that are effective during a calendar year, on the IRS website at
https://www.irs.gov/retirement-plans/operational-compliance-list
. See section 10 of Rev. Proc. 2016-37
and section 9 of Rev. Proc. 2019-39.
4
Rev. Proc. 2013-22 was modified by Rev. Proc. 2014-28, 2014-16 I.R.B. 944, and Rev. Proc. 2015-22,
2015-11 I.R.B. 754, and clarified by Rev. Proc. 2017-18, 2017-5 I.R.B. 743.

3

Section 5.01 of Rev. Proc. 2019-39 establishes a system of recurring remedial
amendment periods for section 403(b) individually designed plan form defects first
occurring after the last day of the initial remedial amendment period.

Section 5.03(1) of Rev. Proc. 2019-39 provides that, except as otherwise
provided by statute, or by regulations or other guidance published in the Internal
Revenue Bulletin, with respect to a form defect relating to, or integral to, a change in
section 403(b) requirements that occurs after the initial remedial period, the remedial
amendment period for a section 403(b) individually designed plan that is not a
governmental plan within the meaning of section 414(d) ends on the last day of the
second calendar year that begins after the issuance of the RA List on which the change
in requirements appears. Section 5.03(2)(c) provides a special rule for governmental
plans that could further extend the remedial amendment period in some cases.

Section 6.01 of Rev. Proc. 2019-39 generally provides that the plan amendment
deadline with respect to a form defect in a section 403(b) individually designed plan first
occurring after the initial remedial amendment period is the date on which the remedial
amendment period ends with respect to that form defect.

Section 7 of Rev. Proc. 2019-39 (as modified by Notice 2020-35), extends the
initial remedial amendment period with respect to a section 403(b) individually designed
plan form defect first occurring on or before June 30, 2020, to the later of
(1) June 30, 2020, or (2) the end of the remedial amendment period provided under
section 5 of Rev. Proc. 2019-39.

Section 9 of Rev. Proc. 2016-37 and section 8.01 of Rev. Proc. 2019-39 provide
that the Department of the Treasury (Treasury Department) and the Internal Revenue
Service (IRS) intend to publish an RA List annually. In general, a change in qualification
requirements will not appear on an RA List until guidance with respect to that change
(including, in certain cases, model amendments) has been provided in regulations or in
other guidance published in the Internal Revenue Bulletin. However, in the discretion of
the Treasury Department and the IRS, a change in qualification requirements may be
included on an RA List in other circumstances, such as in cases in which a statutory
change is enacted and the Treasury Department and the IRS anticipate that no
guidance will be issued.

The remedial amendment period applicable to a disqualifying provision arising as
a result of a change in qualification requirements may be extended beyond the date that
normally would apply to an item included on an RA List, if, for example, a statute,
regulation or other guidance published in the Internal Revenue Bulletin provides for a
later deadline.

4

III. CONTENT AND ORGANIZATION OF RA LIST

In general, an RA List includes statutory and administrative changes in
requirements that are first effective during the plan year in which the list is published.
5

However, an RA List does not include:
• Guidance issued or legislation enacted after the list has been prepared;

• Statutory changes in requirements for which the Treasury Department and
the IRS expect to issue guidance that would be included on an RA List issued
in a future year;
• Changes in requirements that permit (but do not require) optional plan
provisions, in contrast to changes in requirements that cause existing plan
provisions (which may include optional plan provisions previously adopted) to
become disqualifying provisions or section 403(b) form defects;
6
or

• Changes in the tax laws affecting qualified individually designed plans or
section 403(b) individually designed plans that do not change the
requirements (such as changes to the tax treatment of plan distributions, or
changes to the funding requirements for qualified individually designed plans).
The RA List is divided into two parts. Part A covers changes in requirements that
generally would require an amendment to most plans or to most plans of the type
affected by the change.

Part B includes changes in requirements that the Treasury Department and the
IRS anticipate will not require amendments to most plans but might require an
amendment because of an unusual plan provision in a particular plan. For example, if a
change affects a particular requirement that most plans incorporate by reference, Part B
would include that change because a particular plan might not incorporate the
requirement by reference and, thus, might include language inconsistent with the
change.

Annual, monthly, or other periodic changes to (1) the various dollar limits that are
adjusted for cost of living increases as provided in section 415(d) or other Code
provisions, (2) the spot segment rates used to determine the applicable interest rate
under section 417(e)(3), and (3) the applicable mortality table under section 417(e)(3),

5
RA Lists also may include changes in requirements that were first effective in a prior year that were not
included on a prior RA List under certain circumstances, such as changes in requirements that were
issued or enacted after the prior year’s RA List was prepared.
6
The remedial amendment period and plan amendment deadline for discretionary changes to the terms
of a qualified individually designed plan are governed by sections 5.05(2), 5.06(2), and 8.02 of Rev. Proc.
2016-37. The remedial amendment period and plan amendment deadline for discretionary changes to the
terms of a section 403(b) individually designed plan are governed by sections 5.03(1)(b), 5.03(2)(b), and
6.02 of Rev. Proc. 2019-39. These deadlines for discretionary changes are not affected by the inclusion
of a change in requirements on an RA List.

5

are treated as included on the RA List for the year in which such changes are effective
even though they are not directly referenced on that RA List. The Treasury Department
and the IRS anticipate that few plans have language that will need to be amended on
account of these changes.

The fact that a change in a requirement is included on the RA List does not
necessarily mean that a plan must be amended as a result of that change. Each plan
sponsor must determine whether a particular change in a requirement requires an
amendment to its plan.

IV. 2021 REQUIRED AMENDMENTS LIST

Part A. Changes in requirements that generally would require an amendment to most
plans or to most plans of the type affected by the change.

• Special Financial Assistance Program for financially troubled
multiemployer plans (American Rescue Plan Act of 2021 section
9704). Section 9704 of the American Rescue Plan Act of 2021, Pub. L.
117-2, 135 Stat. 4, added section 4262 to the Employee Retirement
Income Security Act of 1974, Pub. L. 93-406, 88 Stat. 829, as
amended (ERISA) and section 432(k) to the Code. Under section 4262
of ERISA, the sponsor of an eligible multiemployer plan as defined in
section 4262(b) of ERISA may apply to the Pension Benefit Guaranty
Corporation (PBGC) to receive special financial assistance, provided
certain conditions are satisfied. Section 432(k) of the Code provides
rules relating to an eligible multiemployer plan that applies to PBGC for
special financial assistance. Section 432(k)(2)(A)(i) provides that an
eligible multiemployer plan receiving special financial assistance under
section 4262 of ERISA must reinstate any benefits that were
suspended under section 432(e)(9) of the Code or section 4245(a) of
ERISA (which corresponds to section 418E(a) of the Code), effective
as of the first month in which the effective date for the special financial
assistance occurs, for participants and beneficiaries as of such month.
Section 432(k)(2)(A)(ii) provides that an eligible multiemployer plan
must also provide payments equal to the amount of benefits previously
suspended to any participants or beneficiaries in pay status as of the
effective date of the special financial assistance, payable as
determined by the plan as a lump sum within three months of the
effective date or in equal monthly installments over a period of five
years, commencing within three months of the effective date, with no
adjustment for interest.

Notice 2021-38, 2021-30 IRB 155 provides guidance under section
432(k). Among other things, Notice 2021-38 provides that, under
section 432(k)(2)(A)(i), if an eligible multiemployer plan receiving
special financial assistance was previously amended to suspend

6

benefits pursuant to section 432(e)(9) of the Code or section 4245(a)
of ERISA, or had suspended benefits operationally under section
418E(a) of the Code without adopting a plan amendment, the plan
must be amended to reinstate those suspended benefits, effective as
of the month in which the special financial assistance is paid to the
plan, for individuals who are participants or beneficiaries as of that
month. Notice 2021-38 also provides that under section
432(k)(2)(A)(ii), an eligible multiemployer plan that receives special
financial assistance must be amended to provide make-up payments
to individuals who are participants or beneficiaries on, and who have
commenced benefits by, the date the special financial assistance is
paid to the plan. The make-up payments to a participant or a
beneficiary must be paid, as determined by the plan sponsor, either as
a lump sum within three months of the date the special financial
assistance is paid to the plan or in equal monthly installments over a
period of five years, commencing within three months of the date the
special financial assistance is paid. The plan amendment providing for
the make-up payments must also specify which distribution form (that
is, a lump-sum payment or monthly installments) will apply for the
make-up payments to a participant or beneficiary.

Part B. Other changes in requirements that may require an amendment.

• None

V. DRAFTING INFORMATION

The principal author of this notice is Angelique Carrington of the Office of
Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment
Taxes). For further information regarding this notice, contact Ms. Carrington at
(202) 317-4148 (not a toll-free number).