72. Amendment by adopting employer

Statement of Requirement: Rev. Proc.2017-41, sec.5.05; sec. 8.01 and sec. 8.03R ev. Proc. 2023-37, 2023-51 I.R.B. 1491, secs. 12.01, 13.02 and 13.02

Sample Plan Language:

The Adopting Employer may (1) change the choice of options in the adoption agreement; (2) specify or change the effective date of a provision as permitted under the plan; (3) add overriding language in the adoption agreement when such language is necessary to satisfy section 415 or section 416 of the Code because of the required aggregation of multiple plans; (4) amend administrative provisions of the plan such as provisions relating to investments, plan claims procedures, and employer contact information provided the

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amended provisions are not in conflict with any other provision of the plan and do not cause the plan to fail to qualify under section 401; (5) adopt sample or model plan amendments published by the Internal Revenue Service which provide that their adoption will not result in the employer losing reliance on the opinion letter; (6) amend to adjust for limitations provided under section 415, 402(g), 401(a)(17) and 414(q)(1)(B) to reflect annual cost of living increases, other than or to add automatic cost-of-living adjustments to the plan; and ( 7) make interim amendments or discretionary amendments that are related to a change in qualification requirements; (8) amend the plan to reflect a change of a Provider’s name; and (8) amend the plan as provided in a closing agreement under the Audit Closing Agreement Program or compliance statement under the Voluntary Correction Program. An Adopting Employer that amends the plan for any other reason will no longer have reliance on the Opinion Letter.

(Note to reviewer: The above provision, limiting the ability of the Adopting Employer to amend the plan, would not preclude the employer, in cases where the employer is switching from an individually designed plan or from one Pre- approved Plan to another, from attaching to the plan a list of the “section 411(d)(6) protected benefits” that must be preserved. (See LRM #60 and Rev. Proc. 2023-37, section 9.02(2)). Such a list would not be considered an amendment to the plan.)