SECTION 5. REMEDIAL

AMENDMENT PERIOD FOR INDIVIDUALLY DESIGNED QUALIFIED AND SECTION 403(b) PLANS

.01 In general . The provisions of this section 5 set forth the Remedial Amendment Period for (1) Disqualifying Provisions in qualified individually designed plans, and (2) Form Defects first occurring after June 30, 2020, in section 403(b) individually designed plans. ¹⁰ A plan for which a Plan Sponsor does not correct a Disqualifying Provision or Form Defect within the applicable Remedial Amendment Period will not be considered to satisfy the Qualification Requirements or Section 403(b) Requirements, as applicable. .02 Beginning dates of the Remedial Amendment Period .

(1) Disqualifying Provisions . Section 1.401(b)-1(d)(1) sets forth the dates on which the Remedial Amendment Period begins for Disqualifying Provisions. Details regarding the beginning dates of the Remedial Amendment Period are set forth in sections 2.01(5), (6), and (7) of this revenue procedure.

(2) Form Defects . Unless another time is specified by the Commissioner in guidance published in the IRB, the Remedial Amendment Period for a Form Defect begins:

(a) in the case of a Form Defect with respect to a provision of, or absence of a provision from, a new plan, on the date the plan is put into effect;

(b) in the case of a Form Defect with respect to an amendment to an existing plan (other than a Form Defect that is related to a change in Section 403(b) Requirements, or that is integral to such a change, as described in paragraph (c) and (d), respectively, of this section 5.02(2)), on the date the plan amendment is adopted or put into effect, whichever is earlier;

(c) in the case of a Form Defect with respect to a provision that fails to satisfy the Section 403(b) Requirements by

reason of a change in those requirements, on the date on which the change effected by an amendment to the Code or a change in requirements provided in regulations or other guidance published in the IRB became effective with respect to the plan; or

(d) in the case of a Form Defect with respect to a provision that is integral to a Section 403(b) Requirement that has been changed, on the first day on which the plan was operated in accordance with such provision, as amended.

.03 Expiration of Remedial Amendment Period .

(1) Plans that are not governmen- tal plans within the meaning of section 414(d) . Except as otherwise provided by statute or in regulations or other guidance published in the IRB, the Remedial Amendment Period for Disqualifying Provisions and Form Defects for plans that are not governmental plans within the meaning of section 414(d) expires as follows:

(a) New plan . The Remedial Amendment Period for a Disqualifying Provision or Form Defect with respect to a provision of a new plan or the absence of a provision from a new plan expires on the last day of the second calendar year following the calendar year in which the plan is put into effect.

(b) Amendment to existing plan . The Remedial Amendment Period for a Disqualifying Provision or Form Defect with respect to an amendment to an existing plan (other than an amendment described in paragraph (c) of this section 5.03(1)) expires on the last day of the second calendar year following the calendar year in which the amendment is adopted or effective, whichever is later.

(c) Change in Qualification Require- ments or Section 403(b) Requirements . The Remedial Amendment Period for a Disqualifying Provision or Form Defect that arises as a result of a change in Qualification Requirements or Section 403(b) Requirements, as applicable, expires on the last day of the second calendar year that begins after the issuance of the Required Amendments List (described in section 7) on which the change in Qualification

Requirements or Section 403(b) Requirements appears.

(2) Plans that are governmental plans within the meaning of section 414(d) . Except as otherwise provided by statute or in regulations or other guidance published in the IRB, the Remedial Amendment Period for Disqualifying Provisions and Form Defects for plans that are governmental plans within the meaning of section 414(d) expires as follows:

(a) New plan . The Remedial Amendment Period for a Disqualifying Provision or Form Defect with respect to a provision of a new governmental plan or the absence of a provision from a new governmental plan expires on the later of:

(i) the last day of the second calendar year following the calendar year in which the plan is put into effect; or

(ii) 90 days after the close of the third regular legislative session of the legislative body with the authority to amend the plan that begins after the end of the plan’s initial plan year.

(b) Amendment to existing plan . The Remedial Amendment Period for a Disqualifying Provision or Form Defect with respect to an amendment to an existing governmental plan (other than an amendment described in paragraph (c) of this section 5.03(2)) expires on the later of:

(i) the last day of the second calendar year following the calendar year in which the amendment is adopted or effective, whichever is later; or

(ii) 90 days after the close of the third regular legislative session of the legislative body with the authority to amend the plan that begins after the calendar year in which the amendment is adopted or effective, whichever is later.

(c) Change in Qualification Require- ments or Section 403(b) Requirements . The Remedial Amendment Period for a Disqualifying Provision or Form Defect with respect to a governmental plan that arises as a result of a change in Qualification Requirements or Section 403(b) Requirements, as applicable, expires on the later of:

(i) the last day of the second calendar year that begins after the issuance of the Required Amendments List on which the

10 For Remedial Amendment Period rules for form defects first occurring before July 1, 2020, see Rev. Proc. 2013-22, 2013‑18 IRB 985, as clarified by Rev. Proc. 2017-18, 2017‑5 IRB 743, and as modified by Rev. Proc. 2019-39. A Form Defect as defined in section 4.01(2) of this revenue procedure differs from the definition of a form defect first occurring before July 1, 2020.

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(a) the end of the plan year in which the plan amendment is operationally put into effect; or

(b) 90 days after the close of the second regular legislative session of the legislative body with the authority to amend the plan that begins on or after the date the plan amendment is operationally put into effect.

.03 No relief from the requirements of section 411(d)(6) . This revenue procedure does not provide relief from the requirements of section 411(d)(6) for any plan amendments made to a qualified plan, including plan amendments adopted as a result of changes to the Qualification Requirements. ¹¹ Except to the extent permitted under section 411(d)(6) and the regulations thereunder, under a statutory provision, or under other guidance published in the IRB, section 411(d)(6) prohibits a plan amendment that decreases a participant’s accrued benefits or that has the effect of eliminating or reducing an early retirement benefit or retirement-type subsidy, or eliminating an optional form of benefit, with respect to benefits attributable to service before the amendment. However, an amendment that eliminates or decreases benefits that have not yet accrued does not violate section 411(d) (6), provided the amendment is adopted and effective before the benefits accrue.