84. RESERVED 85. Additional Adoption

Statement of Requirement: Rev. Proc. 2023-37, 2023-51 I.R.B. 1491, secs. 9.02(8) and 9.02(9)

(Note to reviewer: Although this LRM describes additional requirements applicable to Adoption Agreement Plans, these requirements generally also apply to Single Document Plans. An Adoption Agreement Plan consists of a basic plan document and an adoption agreement. The basic plan document contains all of the non-elective provisions applicable to all Adopting Employers, and the adoption agreement contains the options that may be selected by each Adopting Employer. In that case, many of these requirements would appear in and be satisfied by the Adoption Agreement. In contrast, a Single Document Plan consists of a single plan document offered by a Provider without an adoption agreement. A Single Document Plan may contain alternate paragraphs and options – including blanks to be completed by the Adopting Employer in accordance with specified parameters - that may be selected by an Adopting Employer. A Single Document Plan must comply with these requirements as well.)

(Note to reviewer: Plans cannot include blanks or fill-in provisions for the Adopting Employer to complete unless the provisions have parameters which preclude the Adopting Employer from completing the provisions in a manner that could violate the qualification requirements. See Rev. Proc. 2023-37, sec. 10.02(d).)

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(Note to reviewer: Each adoption agreement must contain language which complies with the following requirements:

(1) The plan must include a procedure for amendments by the Provider and that the Provider will no longer have the authority to amend the plan as of the date the plan is treated as an individually designed plan. See LRM #71.

(2) The adoption agreement must state that it is to be used with only one basic plan document and must identify that document.

(3) The adoption agreement must include the name, address and telephone number of the Provider or the Provider’s authorized representative. The adoption agreement may also provide additional contact information (such as an email address).

(4) The adoption agreement must contain a statement describing the limitations on employer reliance on an Opinion Letter and that the failure to properly fill out the adoption agreement may result in disqualification of the plan.

(5) The adoption agreement must contain a statement that the Provider will inform the adopting employer of any amendments made to the plan or of the discontinuance or abandonment of the plan.

(6) The adoption agreement must contain a dated employer signature line.

(7) The employer must complete a new adoption agreement upon first adoption of the plan. Additionally, upon any modification to a prior election, making of new elections, or restatement of the plan, a new adoption agreement or signature page and plan document must be completed.

(8) The plan may not be signed prior to the issuance of an Opinion Letter for the Plan.)

(Note to reviewer: The above signature requirement may be satisfied by an electronic signature that reliably authenticates and verifies the adoption of the adoption agreement, or restatement, amendment, or modification thereof, by the employer.)

(Note to reviewer: For plan years beginning on or after January 1, 2020, Section 201 of The Setting Every Community Up for Retirement Enhancement (SECURE) Act of 2019, Pub. L. 116–94, provides that a retirement plan may be treated as if it is effective for a taxable year so long as the plan is adopted before the due date of the employer’s tax return (including extensions) for that year.)