Background on the 401k plan amendment process
The IRS releases periodic amendments and restatements in accordance with laws passed by Congress, or updates to IRS and Department of Labor (DOL) rules and regulations.
A Solo 401k plan is governed by Internal Revenue Code Section 401(k) and as such, must follow these updates by adopting new plan amendments where applicable.
SECURE Act & CARES Act Amendment
The SECURE Act was passed in late 2019 and the CARES Act in Spring 2020. Though retirement plans were able to adopt appropriate amendments by the end of 2022, IRS Notice 2022-33 and Notice 2022-45 extended the deadline for retirement plans to adopt the amendments required by the SECURE Act and the CARES Act until December 31, 2025.
Because the Cycle 3 post-PPA document restatement adoption window closed on July 31, 2022, none of them includes SECURE Act or CARES Act changes.
Nabers Group released the SECURE Act and CARES Act amendment in late 2023 to all users.
What's included in the amendment?
This Amendment reflects the requirements under the Setting Every Community Up for Retirement Enhancement Act (SECURE Act) of 2019, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) of2020, the Taxpayer Certainty and Disaster Tax Relief Act of 2020, IRS Notice 2020-50, IRS Notice2020-51, and IRS Notice 2020-68.
The Amendment outlines updates to a 401k plan (including a Solo 401k plan) as a reflection of the passage of the above-mentioned laws. Notable points include:
Allows individuals over age 70.5 to contribute to an IRA or 401k
Businesses must offer a 401k plan to part-time employees who work either 1,000 hours throughout the year or have three consecutive years with 500 hours of service.
This also means sponsoring businesses may no longer be eligible for a Solo 401k if you have the same part-time employees working for your company for 3+ years.
Pushed back the age for retirement plan participants to take required minimum distributions (RMDs) from 70½ to 72. (This was later raised to 73, starting in 2023).
Allows penalty-free withdrawals of $5,000 from 401(k) accounts to offset the costs of having or adopting a child.
Note: the current amendment does not yet include provisions for SECURE Act 2.0, which passed in December 2022.
The following were temporary provisions put in place during the Act and are not currently active.
Waives the 10% penalty for early withdraw and allow taxpayers to later restore any withdrawn funds (during the period of the Act).
Waive required minimum distribution rules for retirement accounts (during the period of the Act).
Increases Solo 401k loan caps from $50,000 up to $100,000 (during the period of the Act).
Suspended loan payments will probably be deferred up to a year, which could extend the 5-year loan repayment period to 6-years (during the period of the Act).
Delay repaying existing 401k loans (during the period of the Act).
This amendment is required to be executed by December 31, 2025.
What action is required to make the amendment official?
The Amendment has already been provisioned for you (all checkboxes are checked or unchecked in accordance with the Solo 401k plan).
All you need to do is Docusign the Amendment and a copy will be stored in your 401k plan document portal automatically.
Only the primary participant/account holder is required to sign. If your Solo 401k has two trustees (you and your spouse), only one of you will sign the Amendment.
What's the deadline to sign?
The Amendment must be signed by December 31, 2025 but we encourage you to complete the Docusign as soon as possible to ensure the plan is in compliance with IRS rules and regulations.
Why am I getting this amendment now, if the laws passed years ago?
It's a lengthy process for Congress to create and pass a law, and the IRS to then write the rules and regulations surrounding that law. IRS-approved plan document providers (Nabers) must then write the corresponding amendments, which are approved for distribution to those who have adopted our pre-approved plans (you).
This often results in your getting the amendment to make everything official, even years after a law has passed. In the case of the SECURE Act and CARES Act amendments, you might be signing the Amendment even after certain provisions of the Act have expired (e.g. COVID-related distributions, extended loan repayments and electing not to take an RMD expired on September 22, 2020). Even if the provisions are no longer fresh, it's important you sign the Amendment so your 401k plan reflects the updated rules and regulations.