AMENDMENT AND TERMINATION 71. Provider’s power to amend

Statement of Requirement: Rev. Proc. 2023-37, 2023-51 I.R.B. 1491, secs. 9.02(1) and 13.01

Sample Plan Language:

The Provider, as defined in section 4.01(15) of Rev. Proc. 2023-37, may amend any part of the plan. However, for purposes of reliance on an Opinion Letter, the Provider will no longer have the authority to amend the plan on behalf of the Adopting Employer as of the date (1) the Adopting Employer makes any amendment to the plan other than amendments described in section 13.02 and 13.05 of Rev. Proc. 2023-37, (2) the Adopting Employer amends the plan to incorporate a type of plan described in section 10.02 of Rev. Proc. 2023-37 that is not permitted under the Pre-approved Plan program,

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(3) the Internal Revenue Service notifies the Adopting Employer, in accordance with section 13.05(4) of Rev. Proc. 2023-37, that the plan is an individually designed plan due to the nature and extent of employer amendments to the plan, (4) the Adopting Employer chooses to discontinue participation in the plan after the plan’s amendment by the Provider and the Adopting Employer does not substitute another Pre-approved Plan, (5) the Adopting Employer makes any amendment to the plan that removes a required provision described in section 9 of Rev. Proc. 2023-37, (6) the Adopting Employer fails to timely adopt a newly approved version of the plan within the designated Employer Adoption Window for a cycle as described in section 11.02 of Rev. Proc. 2023-37, or (7) the Adopting Employer fails to timely adopt an Interim Amendment by the end of the second year after the plan amendment deadline described in section 7.01 of Rev. Proc. 2023-37.

For purposes of Provider amendments, the mass submitter shall be recognized as the agent of the Provider. If the Provider does not adopt the amendments made by the mass submitter, it will no longer be identical to or a minor modifier of the mass submitter plan.