26 U.S.C. § 401 — Qualified pension, profit-sharing, and stock

Page 1178 TITLE 26—INTERNAL REVENUE CODE § 401 1983—Pub. L. 98–21, title III, § 321(e)(2)(D)(ii), Apr. 20, 1983, 97 Stat. 120, substituted ‘‘Employees of foreign af- filiates covered by section 3121(l) agreements’’ for ‘‘Cer- tain employees of foreign subsidiaries’’ in item 406. 1980—Pub. L. 96–603, § 2(d)(1), Dec. 28, 1980, 94 Stat. 3510, added item 404A. Pub. L. 96–222, title I, § 101(a)(7)(L)(v)(VIII), Apr. 1, 1980, 94 Stat. 200, substituted ‘‘tax credit employee stock ownership plans’’ for ‘‘ESOPS’’ in item 409A. 1978—Pub. L. 95–600, title I, § 141(f)(8), Nov. 6, 1978, 92 Stat. 2795, added item 409A. 1974—Pub. L. 93–406, title II, § 1016(b)(1), Sept. 2, 1974, 88 Stat. 932, inserted heading ‘‘Subpart A—General Rule’’ and added analysis of subparts. Pub. L. 93–406, title II, § 2002(h)(2), Sept. 2, 1974, 88 Stat. 970, added items 408 and 409. 1964—Pub. L. 88–272, title II, § 220(c)(1), Feb. 26, 1964, 78 Stat. 62, added items 406 and 407. 1962—Pub. L. 87–792, § 5(b), Oct. 10, 1962, 76 Stat. 827, added item 405. § 401. Qualified pension, profit-sharing, and stock bonus plans (a) Requirements for qualification A trust created or organized in the United States and forming part of a stock bonus, pen- sion, or profit-sharing plan of an employer for the exclusive benefit of his employees or their beneficiaries shall constitute a qualified trust under this section— (1) if contributions are made to the trust by such employer, or employees, or both, or by another employer who is entitled to deduct his contributions under section 404(a)(3)(B) (relat- ing to deduction for contributions to profit- sharing and stock bonus plans), or by a chari- table remainder trust pursuant to a qualified gratuitous transfer (as defined in section 664(g)(1)), for the purpose of distributing to such employees or their beneficiaries the cor- pus and income of the fund accumulated by the trust in accordance with such plan; (2) if under the trust instrument it is impos- sible, at any time prior to the satisfaction of all liabilities with respect to employees and their beneficiaries under the trust, for any part of the corpus or income to be (within the taxable year or thereafter) used for, or di- verted to, purposes other than for the exclu- sive benefit of his employees or their bene- ficiaries (but this paragraph shall not be con- strued, in the case of a multiemployer plan, to prohibit the return of a contribution within 6 months after the plan administrator deter- mines that the contribution was made by a mistake of fact or law (other than a mistake relating to whether the plan is described in section 401(a) or the trust which is part of such plan is exempt from taxation under section 501(a), or the return of any withdrawal liabil- ity payment determined to be an overpayment within 6 months of such determination)); (3) if the plan of which such trust is a part satisfies the requirements of section 410 (relat- ing to minimum participation standards); and (4) if the contributions or benefits provided under the plan do not discriminate in favor of highly compensated employees (within the meaning of section 414(q)). For purposes of this paragraph, there shall be excluded from con- sideration employees described in section 410(b)(3)(A) and (C). (5) SPECIAL RULES RELATING TO NON- DISCRIMINATION REQUIREMENTS.— (A) SALARIED OR CLERICAL EMPLOYEES.—A classification shall not be considered dis- criminatory within the meaning of para- graph (4) or section 410(b)(2)(A)(i) merely be- cause it is limited to salaried or clerical em- ployees. (B) CONTRIBUTIONS AND BENEFITS MAY BEAR UNIFORM RELATIONSHIP TO COMPENSATION.—A plan shall not be considered discriminatory within the meaning of paragraph (4) merely because the contributions or benefits of, or on behalf of, the employees under the plan bear a uniform relationship to the com- pensation (within the meaning of section 414(s)) of such employees. (C) CERTAIN DISPARITY PERMITTED.—A plan shall not be considered discriminatory with- in the meaning of paragraph (4) merely be- cause the contributions or benefits of, or on behalf of, the employees under the plan favor highly compensated employees (as de- fined in section 414(q)) in the manner per- mitted under subsection (l). (D) INTEGRATED DEFINED BENEFIT PLAN.— (i) IN GENERAL.—A defined benefit plan shall not be considered discriminatory within the meaning of paragraph (4) mere- ly because the plan provides that the em- ployer-derived accrued retirement benefit for any participant under the plan may not exceed the excess (if any) of— (I) the participant’s final pay with the employer, over (II) the employer-derived retirement benefit created under Federal law attrib- utable to service by the participant with the employer. For purposes of this clause, the employer- derived retirement benefit created under Federal law shall be treated as accruing ratably over 35 years. (ii) FINAL PAY.—For purposes of this sub- paragraph, the participant’s final pay is the compensation (as defined in section 414(q)(4)) paid to the participant by the employer for any year— (I) which ends during the 5-year period ending with the year in which the partic- ipant separated from service for the em- ployer, and (II) for which the participant’s total compensation from the employer was highest. (E) 2 OR MORE PLANS TREATED AS SINGLE PLAN.—For purposes of determining whether 2 or more plans of an employer satisfy the requirements of paragraph (4) when consid- ered as a single plan— (i) CONTRIBUTIONS.—If the amount of contributions on behalf of the employees allowed as a deduction under section 404 for the taxable year with respect to such plans, taken together, bears a uniform re- lationship to the compensation (within the meaning of section 414(s)) of such employ- ees, the plans shall not be considered dis- criminatory merely because the rights of employees to, or derived from, the em- ployer contributions under the separate plans do not become nonforfeitable at the same rate. Page 1179 TITLE 26—INTERNAL REVENUE CODE § 401 (ii) BENEFITS.—If the employees’ rights to benefits under the separate plans do not become nonforfeitable at the same rate, but the levels of benefits provided by the separate plans satisfy the requirements of regulations prescribed by the Secretary to take account of the differences in such rates, the plans shall not be considered dis- criminatory merely because of the dif- ference in such rates. (F) SOCIAL SECURITY RETIREMENT AGE.—For purposes of testing for discrimination under paragraph (4)— (i) the social security retirement age (as defined in section 415(b)(8)) shall be treated as a uniform retirement age, and (ii) subsidized early retirement benefits and joint and survivor annuities shall not be treated as being unavailable to employ- ees on the same terms merely because such benefits or annuities are based in whole or in part on an employee’s social security retirement age (as so defined). (G) GOVERNMENTAL PLANS.—Paragraphs (3) and (4) shall not apply to a governmental plan (within the meaning of section 414(d)). (6) A plan shall be considered as meeting the requirements of paragraph (3) during the whole of any taxable year of the plan if on one day in each quarter it satisfied such require- ments. (7) A trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part satisfies the require- ments of section 411 (relating to minimum vesting standards). (8) A trust forming part of a defined benefit plan shall not constitute a qualified trust under this section unless the plan provides that forfeitures must not be applied to in- crease the benefits any employee would other- wise receive under the plan. (9) REQUIRED DISTRIBUTIONS.— (A) IN GENERAL.—A trust shall not con- stitute a qualified trust under this sub- section unless the plan provides that the en- tire interest of each employee— (i) will be distributed to such employee not later than the required beginning date, or (ii) will be distributed, beginning not later than the required beginning date, in accordance with regulations, over the life of such employee or over the lives of such employee and a designated beneficiary (or over a period not extending beyond the life expectancy of such employee or the life ex- pectancy of such employee and a des- ignated beneficiary). (B) REQUIRED DISTRIBUTION WHERE EM- PLOYEE DIES BEFORE ENTIRE INTEREST IS DIS- TRIBUTED.— (i) WHERE DISTRIBUTIONS HAVE BEGUN UNDER SUBPARAGRAPH (A)(ii).—A trust shall not constitute a qualified trust under this section unless the plan provides that if— (I) the distribution of the employee’s interest has begun in accordance with subparagraph (A)(ii), and (II) the employee dies before his entire interest has been distributed to him, the remaining portion of such interest will be distributed at least as rapidly as under the method of distributions being used under subparagraph (A)(ii) as of the date of his death. (ii) 5-YEAR RULE FOR OTHER CASES.—A trust shall not constitute a qualified trust under this section unless the plan provides that, if an employee dies before the dis- tribution of the employee’s interest has begun in accordance with subparagraph (A)(ii), the entire interest of the employee will be distributed within 5 years after the death of such employee. (iii) EXCEPTION TO 5-YEAR RULE FOR CER- TAIN AMOUNTS PAYABLE OVER LIFE OF BENE- FICIARY.—If— (I) any portion of the employee’s inter- est is payable to (or for the benefit of) a designated beneficiary, (II) such portion will be distributed (in accordance with regulations) over the life of such designated beneficiary (or over a period not extending beyond the life expectancy of such beneficiary), and (III) such distributions begin not later than 1 year after the date of the employ- ee’s death or such later date as the Sec- retary may by regulations prescribe, for purposes of clause (ii), the portion re- ferred to in subclause (I) shall be treated as distributed on the date on which such distributions begin. (iv) SPECIAL RULE FOR SURVIVING SPOUSE OF EMPLOYEE.—If the designated bene- ficiary referred to in clause (iii)(I) is the surviving spouse of the employee and the surviving spouse elects the treatment in this clause— (I) the regulations referred to in clause (iii)(II) shall treat the surviving spouse as if the surviving spouse were the em- ployee, (II) the date on which the distributions are required to begin under clause (iii)(III) shall not be earlier than the date on which the employee would have attained the applicable age, and (III) if the surviving spouse dies before the distributions to such spouse begin, this subparagraph shall be applied as if the surviving spouse is the employee. An election described in this clause shall be made at such time and in such manner as prescribed by the Secretary, shall in- clude a timely notice to the plan adminis- trator, and once made may not be revoked except with the consent of the Secretary. (C) REQUIRED BEGINNING DATE.—For pur- poses of this paragraph— (i) IN GENERAL.—The term ‘‘required be- ginning date’’ means April 1 of the cal- endar year following the later of— (I) the calendar year in which the em- ployee attains the applicable age, or (II) the calendar year in which the em- ployee retires. Page 1180 TITLE 26—INTERNAL REVENUE CODE § 401 (ii) EXCEPTION.—Subclause (II) of clause (i) shall not apply— (I) except as provided in section 409(d), in the case of an employee who is a 5-per- cent owner (as defined in section 416) with respect to the plan year ending in the calendar year in which the employee attains the applicable age, or (II) for purposes of section 408(a)(6) or (b)(3). (iii) ACTUARIAL ADJUSTMENT.—In the case of an employee to whom clause (i)(II) ap- plies who retires in a calendar year after the calendar year in which the employee attains age 701⁄2, the employee’s accrued benefit shall be actuarially increased to take into account the period after age 701⁄2 in which the employee was not receiving any benefits under the plan. (iv) EXCEPTION FOR GOVERNMENTAL AND CHURCH PLANS.—Clauses (ii) and (iii) shall not apply in the case of a governmental plan or church plan. For purposes of this clause, the term ‘‘church plan’’ means a plan maintained by a church for church employees, and the term ‘‘church’’ means any church (as defined in section 3121(w)(3)(A)) or qualified church-con- trolled organization (as defined in section 3121(w)(3)(B)). (v) APPLICABLE AGE.— (I) In the case of an individual who at- tains age 72 after December 31, 2022, and age 73 before January 1, 2033, the applica- ble age is 73. (II) In the case of an individual who at- tains age 74 after December 31, 2032, the applicable age is 75. (D) LIFE EXPECTANCY.—For purposes of this paragraph, the life expectancy of an em- ployee and the employee’s spouse (other than in the case of a life annuity) may be re- determined but not more frequently than an- nually. (E) DEFINITIONS AND RULES RELATING TO DESIGNATED BENEFICIARIES.—For purposes of this paragraph— (i) DESIGNATED BENEFICIARY.—The term ‘‘designated beneficiary’’ means any indi- vidual designated as a beneficiary by the employee. (ii) ELIGIBLE DESIGNATED BENEFICIARY.— The term ‘‘eligible designated beneficiary’’ means, with respect to any employee, any designated beneficiary who is— (I) the surviving spouse of the em- ployee, (II) subject to clause (iii), a child of the employee who has not reached majority (within the meaning of subparagraph (F)), (III) disabled (within the meaning of section 72(m)(7)), (IV) a chronically ill individual (within the meaning of section 7702B(c)(2), ex- cept that the requirements of subpara- graph (A)(i) thereof shall only be treated as met if there is a certification that, as of such date, the period of inability de- scribed in such subparagraph with re- spect to the individual is an indefinite one which is reasonably expected to be lengthy in nature), or (V) an individual not described in any of the preceding subclauses who is not more than 10 years younger than the em- ployee. The determination of whether a designated beneficiary is an eligible designated bene- ficiary shall be made as of the date of death of the employee. (iii) SPECIAL RULE FOR CHILDREN.—Sub- ject to subparagraph (F), an individual de- scribed in clause (ii)(II) shall cease to be an eligible designated beneficiary as of the date the individual reaches majority and any remainder of the portion of the indi- vidual’s interest to which subparagraph (H)(ii) applies shall be distributed within 10 years after such date. (F) TREATMENT OF PAYMENTS TO CHIL- DREN.—Under regulations prescribed by the Secretary, for purposes of this paragraph, any amount paid to a child shall be treated as if it had been paid to the surviving spouse if such amount will become payable to the surviving spouse upon such child reaching majority (or other designated event per- mitted under regulations). (G) TREATMENT OF INCIDENTAL DEATH BEN- EFIT DISTRIBUTIONS.—For purposes of this title, any distribution required under the in- cidental death benefit requirements of this subsection shall be treated as a distribution required under this paragraph. (H) SPECIAL RULES FOR CERTAIN DEFINED CONTRIBUTION PLANS.—In the case of a de- fined contribution plan, if an employee dies before the distribution of the employee’s en- tire interest— (i) IN GENERAL.—Except in the case of a beneficiary who is not a designated bene- ficiary, subparagraph (B)(ii)— (I) shall be applied by substituting ‘‘10 years’’ for ‘‘5 years’’, and (II) shall apply whether or not dis- tributions of the employee’s interests have begun in accordance with subpara- graph (A). (ii) EXCEPTION FOR ELIGIBLE DESIGNATED BENEFICIARIES.—Subparagraph (B)(iii) shall apply only in the case of an eligible des- ignated beneficiary. (iii) RULES UPON DEATH OF ELIGIBLE DES- IGNATED BENEFICIARY.—If an eligible des- ignated beneficiary dies before the portion of the employee’s interest to which this subparagraph applies is entirely distrib- uted, the exception under clause (ii) shall not apply to any beneficiary of such eligi- ble designated beneficiary and the remain- der of such portion shall be distributed within 10 years after the death of such eli- gible designated beneficiary. (iv) SPECIAL RULE IN CASE OF CERTAIN TRUSTS FOR DISABLED OR CHRONICALLY ILL BENEFICIARIES.—In the case of an applica- ble multi-beneficiary trust, if under the terms of the trust— Page 1181 TITLE 26—INTERNAL REVENUE CODE § 401 1 So in original. Probably should be ‘‘an’’. (I) it is to be divided immediately upon the death of the employee into separate trusts for each beneficiary, or (II) no beneficiary (other than a 1 eligi- ble designated beneficiary described in subclause (III) or (IV) of subparagraph (E)(ii)) has any right to the employee’s interest in the plan until the death of all such eligible designated beneficiaries with respect to the trust, for purposes of a trust described in sub- clause (I), clause (ii) shall be applied sepa- rately with respect to the portion of the employee’s interest that is payable to any eligible designated beneficiary described in subclause (III) or (IV) of subparagraph (E)(ii); and, for purposes of a trust de- scribed in subclause (II), subparagraph (B)(iii) shall apply to the distribution of the employee’s interest and any bene- ficiary who is not such an eligible des- ignated beneficiary shall be treated as a beneficiary of the eligible designated bene- ficiary upon the death of such eligible des- ignated beneficiary. (v) APPLICABLE MULTI-BENEFICIARY TRUST.—For purposes of this subparagraph, the term ‘‘applicable multi-beneficiary trust’’ means a trust— (I) which has more than one bene- ficiary, (II) all of the beneficiaries of which are treated as designated beneficiaries for purposes of determining the distribution period pursuant to this paragraph, and (III) at least one of the beneficiaries of which is an eligible designated bene- ficiary described in subclause (III) or (IV) of subparagraph (E)(ii). For purposes of the preceding sentence, in the case of a trust the terms of which are described in clause (iv)(II), any beneficiary which is an organization described in sec- tion 408(d)(8)(B)(i) shall be treated as a des- ignated beneficiary described in subclause (II). (vi) APPLICATION TO CERTAIN ELIGIBLE RE- TIREMENT PLANS.—For purposes of apply- ing the provisions of this subparagraph in determining amounts required to be dis- tributed pursuant to this paragraph, all el- igible retirement plans (as defined in sec- tion 402(c)(8)(B), other than a defined ben- efit plan described in clause (iv) or (v) thereof or a qualified trust which is a part of a defined benefit plan) shall be treated as a defined contribution plan. (I) TEMPORARY WAIVER OF MINIMUM RE- QUIRED DISTRIBUTION.— (i) IN GENERAL.—The requirements of this paragraph shall not apply for calendar year 2020 to— (I) a defined contribution plan which is described in this subsection or in section 403(a) or 403(b), (II) a defined contribution plan which is an eligible deferred compensation plan described in section 457(b) but only if such plan is maintained by an employer described in section 457(e)(1)(A), or (III) an individual retirement plan. (ii) SPECIAL RULE FOR REQUIRED BEGIN- NING DATES IN 2020.—Clause (i) shall apply to any distribution which is required to be made in calendar year 2020 by reason of— (I) a required beginning date occurring in such calendar year, and (II) such distribution not having been made before January 1, 2020. (iii) SPECIAL RULES REGARDING WAIVER PERIOD.—For purposes of this paragraph— (I) the required beginning date with re- spect to any individual shall be deter- mined without regard to this subpara- graph for purposes of applying this para- graph for calendar years after 2020, and (II) if clause (ii) of subparagraph (B) applies, the 5-year period described in such clause shall be determined without regard to calendar year 2020. (J) CERTAIN INCREASES IN PAYMENTS UNDER A COMMERCIAL ANNUITY.—Nothing in this sec- tion shall prohibit a commercial annuity (within the meaning of section 3405(e)(6)) that is issued in connection with any eligi- ble retirement plan (within the meaning of section 402(c)(8)(B), other than a defined ben- efit plan) from providing one or more of the following types of payments on or after the annuity starting date: (i) annuity payments that increase by a constant percentage, applied not less fre- quently than annually, at a rate that is less than 5 percent per year, (ii) a lump sum payment that— (I) results in a shortening of the pay- ment period with respect to an annuity or a full or partial commutation of the future annuity payments, provided that such lump sum is determined using rea- sonable actuarial methods and assump- tions, as determined in good faith by the issuer of the contract, or (II) accelerates the receipt of annuity payments that are scheduled to be re- ceived within the ensuing 12 months, re- gardless of whether such acceleration shortens the payment period with re- spect to the annuity, reduces the dollar amount of benefits to be paid under the contract, or results in a suspension of annuity payments during the period being accelerated, (iii) an amount which is in the nature of a dividend or similar distribution, pro- vided that the issuer of the contract deter- mines such amount using reasonable actu- arial methods and assumptions, as deter- mined in good faith by the issuer of the contract, when calculating the initial an- nuity payments and the issuer’s experience with respect to those factors, or (iv) a final payment upon death that does not exceed the excess of the total amount of the consideration paid for the annuity payments, less the aggregate amount of prior distributions or payments from or under the contract. Page 1182 TITLE 26—INTERNAL REVENUE CODE § 401 (10) OTHER REQUIREMENTS.— (A) PLANS BENEFITING OWNER-EMPLOYEES.— In the case of any plan which provides con- tributions or benefits for employees some or all of whom are owner-employees (as defined in subsection (c)(3)), a trust forming part of such plan shall constitute a qualified trust under this section only if the requirements of subsection (d) are also met. (B) TOP-HEAVY PLANS.— (i) IN GENERAL.—In the case of any top- heavy plan, a trust forming part of such plan shall constitute a qualified trust under this section only if the requirements of section 416 are met. (ii) PLANS WHICH MAY BECOME TOP- HEAVY.—Except to the extent provided in regulations, a trust forming part of a plan (whether or not a top-heavy plan) shall constitute a qualified trust under this sec- tion only if such plan contains provi- sions— (I) which will take effect if such plan becomes a top-heavy plan, and (II) which meet the requirements of section 416. (iii) EXEMPTION FOR GOVERNMENTAL PLANS.—This subparagraph shall not apply to any governmental plan. (11) REQUIREMENT OF JOINT AND SURVIVOR AN- NUITY AND PRERETIREMENT SURVIVOR ANNU- ITY.— (A) IN GENERAL.—In the case of any plan to which this paragraph applies, except as pro- vided in section 417, a trust forming part of such plan shall not constitute a qualified trust under this section unless— (i) in the case of a vested participant who does not die before the annuity start- ing date, the accrued benefit payable to such participant is provided in the form of a qualified joint and survivor annuity, and (ii) in the case of a vested participant who dies before the annuity starting date and who has a surviving spouse, a qualified preretirement survivor annuity is provided to the surviving spouse of such partici- pant. (B) PLANS TO WHICH PARAGRAPH APPLIES.— This paragraph shall apply to— (i) any defined benefit plan, (ii) any defined contribution plan which is subject to the funding standards of sec- tion 412, and (iii) any participant under any other de- fined contribution plan unless— (I) such plan provides that the partici- pant’s nonforfeitable accrued benefit (re- duced by any security interest held by the plan by reason of a loan outstanding to such participant) is payable in full, on the death of the participant, to the par- ticipant’s surviving spouse (or, if there is no surviving spouse or the surviving spouse consents in the manner required under section 417(a)(2), to a designated beneficiary), (II) such participant does not elect a payment of benefits in the form of a life annuity, and (III) with respect to such participant, such plan is not a direct or indirect transferee (in a transfer after December 31, 1984) of a plan which is described in clause (i) or (ii) or to which this clause applied with respect to the participant. Clause (iii)(III) shall apply only with respect to the transferred assets (and income there- from) if the plan separately accounts for such assets and any income therefrom. (C) EXCEPTION FOR CERTAIN ESOP BENE- FITS.— (i) IN GENERAL.—In the case of— (I) a tax credit employee stock owner- ship plan (as defined in section 409(a)), or (II) an employee stock ownership plan (as defined in section 4975(e)(7)), subparagraph (A) shall not apply to that portion of the employee’s accrued benefit to which the requirements of section 409(h) apply. (ii) NONFORFEITABLE BENEFIT MUST BE PAID IN FULL, ETC.—In the case of any par- ticipant, clause (i) shall apply only if the requirements of subclauses (I), (II), and (III) of subparagraph (B)(iii) are met with respect to such participant. (D) SPECIAL RULE WHERE PARTICIPANT AND SPOUSE MARRIED LESS THAN 1 YEAR.—A plan shall not be treated as failing to meet the requirements of subparagraphs (B)(iii) or (C) merely because the plan provides that bene- fits will not be payable to the surviving spouse of the participant unless the partici- pant and such spouse had been married throughout the 1-year period ending on the earlier of the participant’s annuity starting date or the date of the participant’s death. (E) EXCEPTION FOR PLANS DESCRIBED IN SEC- TION 404(c).—This paragraph shall not apply to a plan which the Secretary has deter- mined is a plan described in section 404(c) (or a continuation thereof) in which participa- tion is substantially limited to individuals who, before January 1, 1976, ceased employ- ment covered by the plan. (F) CROSS REFERENCE.—For— (i) provisions under which participants may elect to waive the requirements of this paragraph, and (ii) other definitions and special rules for purposes of this paragraph, see section 417. (12) A trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that in the case of any merger or consolidation with, or transfer of assets or liabilities to, any other plan after September 2, 1974, each participant in the plan would (if the plan then terminated) receive a benefit immediately after the merg- er, consolidation, or transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the merger, consolidation, or transfer (if the plan had then terminated). The preceding sentence does not apply to any multiemployer plan with respect to any transaction to the extent that participants either before or after the Page 1183 TITLE 26—INTERNAL REVENUE CODE § 401 transaction are covered under a multiem- ployer plan to which title IV of the Employee Retirement Income Security Act of 1974 ap- plies. (13) ASSIGNMENT AND ALIENATION.— (A) IN GENERAL.—A trust shall not con- stitute a qualified trust under this section unless the plan of which such trust is a part provides that benefits provided under the plan may not be assigned or alienated. For purposes of the preceding sentence, there shall not be taken into account any vol- untary and revocable assignment of not to exceed 10 percent of any benefit payment made by any participant who is receiving benefits under the plan unless the assign- ment or alienation is made for purposes of defraying plan administration costs. For purposes of this paragraph a loan made to a participant or beneficiary shall not be treat- ed as an assignment or alienation if such loan is secured by the participant’s accrued nonforfeitable benefit and is exempt from the tax imposed by section 4975 (relating to tax on prohibited transactions) by reason of section 4975(d)(1). This paragraph shall take effect on January 1, 1976 and shall not apply to assignments which were irrevocable on September 2, 1974. (B) SPECIAL RULES FOR DOMESTIC RELATIONS ORDERS.—Subparagraph (A) shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic rela- tions order, except that subparagraph (A) shall not apply if the order is determined to be a qualified domestic relations order. (C) SPECIAL RULE FOR CERTAIN JUDGMENTS AND SETTLEMENTS.—Subparagraph (A) shall not apply to any offset of a participant’s benefits provided under a plan against an amount that the participant is ordered or re- quired to pay to the plan if— (i) the order or requirement to pay arises— (I) under a judgment of conviction for a crime involving such plan, (II) under a civil judgment (including a consent order or decree) entered by a court in an action brought in connection with a violation (or alleged violation) of part 4 of subtitle B of title I of the Em- ployee Retirement Income Security Act of 1974, or (III) pursuant to a settlement agree- ment between the Secretary of Labor and the participant, or a settlement agreement between the Pension Benefit Guaranty Corporation and the partici- pant, in connection with a violation (or alleged violation) of part 4 of such sub- title by a fiduciary or any other person, (ii) the judgment, order, decree, or set- tlement agreement expressly provides for the offset of all or part of the amount or- dered or required to be paid to the plan against the participant’s benefits provided under the plan, and (iii) in a case in which the survivor annu- ity requirements of section 401(a)(11) apply with respect to distributions from the plan to the participant, if the participant has a spouse at the time at which the offset is to be made— (I) either such spouse has consented in writing to such offset and such consent is witnessed by a notary public or rep- resentative of the plan (or it is estab- lished to the satisfaction of a plan rep- resentative that such consent may not be obtained by reason of circumstances described in section 417(a)(2)(B)), or an election to waive the right of the spouse to either a qualified joint and survivor annuity or a qualified preretirement sur- vivor annuity is in effect in accordance with the requirements of section 417(a), (II) such spouse is ordered or required in such judgment, order, decree, or set- tlement to pay an amount to the plan in connection with a violation of part 4 of such subtitle, or (III) in such judgment, order, decree, or settlement, such spouse retains the right to receive the survivor annuity under a qualified joint and survivor an- nuity provided pursuant to section 401(a)(11)(A)(i) and under a qualified pre- retirement survivor annuity provided pursuant to section 401(a)(11)(A)(ii), de- termined in accordance with subpara- graph (D). A plan shall not be treated as failing to meet the requirements of this subsection, sub- section (k), section 403(b), or section 409(d) solely by reason of an offset described in this subparagraph. (D) SURVIVOR ANNUITY.— (i) IN GENERAL.—The survivor annuity described in subparagraph (C)(iii)(III) shall be determined as if— (I) the participant terminated employ- ment on the date of the offset, (II) there was no offset, (III) the plan permitted commence- ment of benefits only on or after normal retirement age, (IV) the plan provided only the min- imum-required qualified joint and sur- vivor annuity, and (V) the amount of the qualified pre- retirement survivor annuity under the plan is equal to the amount of the sur- vivor annuity payable under the min- imum-required qualified joint and sur- vivor annuity. (ii) DEFINITION.—For purposes of this subparagraph, the term ‘‘minimum-re- quired qualified joint and survivor annu- ity’’ means the qualified joint and survivor annuity which is the actuarial equivalent of the participant’s accrued benefit (within the meaning of section 411(a)(7)) and under which the survivor annuity is 50 percent of the amount of the annuity which is pay- able during the joint lives of the partici- pant and the spouse. (14) A trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that, un- less the participant otherwise elects, the pay- Page 1184 TITLE 26—INTERNAL REVENUE CODE § 401 ment of benefits under the plan to the partici- pant will begin not later than the 60th day after the latest of the close of the plan year in which— (A) the date on which the participant at- tains the earlier of age 65 or the normal re- tirement age specified under the plan, (B) occurs the 10th anniversary of the year in which the participant commenced partici- pation in the plan, or (C) the participant terminates his service with the employer. In the case of a plan which provides for the payment of an early retirement benefit, a trust forming a part of such plan shall not constitute a qualified trust under this section unless a participant who satisfied the service requirements for such early retirement ben- efit, but separated from the service (with any nonforfeitable right to an accrued benefit) be- fore satisfying the age requirement for such early retirement benefit, is entitled upon sat- isfaction of such age requirement to receive a benefit not less than the benefit to which he would be entitled at the normal retirement age, actuarially, reduced under regulations prescribed by the Secretary. (15) A trust shall not constitute a qualified trust under this section unless under the plan of which such trust is a part— (A) in the case of a participant or bene- ficiary who is receiving benefits under such plan, or (B) in the case of a participant who is sep- arated from the service and who has non- forfeitable rights to benefits, such benefits are not decreased by reason of any increase in the benefit levels payable under title II of the Social Security Act or any increase in the wage base under such title II, if such increase takes place after September 2, 1974, or (if later) the earlier of the date of first receipt of such benefits or the date of such separation, as the case may be. (16) A trust shall not constitute a qualified trust under this section if the plan of which such trust is a part provides for benefits or contributions which exceed the limitations of section 415. (17) COMPENSATION LIMIT.— (A) IN GENERAL.—A trust shall not con- stitute a qualified trust under this section unless, under the plan of which such trust is a part, the annual compensation of each em- ployee taken into account under the plan for any year does not exceed $200,000. (B) COST-OF-LIVING ADJUSTMENT.—The Sec- retary shall adjust annually the $200,000 amount in subparagraph (A) for increases in the cost-of-living at the same time and in the same manner as adjustments under sec- tion 415(d); except that the base period shall be the calendar quarter beginning July 1, 2001, and any increase which is not a mul- tiple of $5,000 shall be rounded to the next lowest multiple of $5,000. [(18) Repealed. Pub. L. 97–248, title II, § 237(b), Sept. 3, 1982, 96 Stat. 511.] (19) A trust shall not constitute a qualified trust under this section if under the plan of which such trust is a part any part of a par- ticipant’s accrued benefit derived from em- ployer contributions (whether or not other- wise nonforfeitable), is forfeitable solely be- cause of withdrawal by such participant of any amount attributable to the benefit derived from contributions made by such participant. The preceding sentence shall not apply to the accrued benefit of any participant unless, at the time of such withdrawal, such participant has a nonforfeitable right to at least 50 per- cent of such accrued benefit (as determined under section 411). The first sentence of this paragraph shall not apply to the extent that an accrued benefit is permitted to be forfeited in accordance with section 411(a)(3)(D)(iii) (re- lating to proportional forfeitures of benefits accrued before September 2, 1974, in the event of withdrawal of certain mandatory contribu- tions). (20) A trust forming part of a pension plan shall not be treated as failing to constitute a qualified trust under this section merely be- cause the pension plan of which such trust is a part makes 1 or more distributions within 1 taxable year to a distributee on account of a termination of the plan of which the trust is a part, or in the case of a profit-sharing or stock bonus plan, a complete discontinuance of con- tributions under such plan. This paragraph shall not apply to a defined benefit plan unless the employer maintaining such plan files a no- tice with the Pension Benefit Guaranty Cor- poration (at the time and in the manner pre- scribed by the Pension Benefit Guaranty Cor- poration) notifying the Corporation of such payment or distribution and the Corporation has approved such payment or distribution or, within 90 days after the date on which such notice was filed, has failed to disapprove such payment or distribution. For purposes of this paragraph, rules similar to the rules of section 402(a)(6)(B) (as in effect before its repeal by section 521 of the Unemployment Compensa- tion Amendments of 1992) shall apply. [(21) Repealed. Pub. L. 99–514, title XI, § 1171(b)(5), Oct. 22, 1986, 100 Stat. 2513.] (22) If a defined contribution plan (other than a profit-sharing plan)— (A) is established by an employer whose stock is not readily tradable on an estab- lished market, and (B) after acquiring securities of the em- ployer, more than 10 percent of the total as- sets of the plan are securities of the em- ployer, any trust forming part of such plan shall not constitute a qualified trust under this section unless the plan meets the requirements of sub- section (e) of section 409. The requirements of subsection (e) of section 409 shall not apply to any employees of an employer who are partici- pants in any defined contribution plan estab- lished and maintained by such employer if the stock of such employer is not readily tradable on an established market and the trade or business of such employer consists of pub- lishing on a regular basis a newspaper for gen- eral circulation. For purposes of the preceding sentence, subsections (b), (c), (m), and (o) of section 414 shall not apply except for deter- Page 1185 TITLE 26—INTERNAL REVENUE CODE § 401 mining whether stock of the employer is not readily tradable on an established market. (23) A stock bonus plan shall not be treated as meeting the requirements of this section unless such plan meets the requirements of subsections (h) and (o) of section 409, except that in applying section 409(h) for purposes of this paragraph, the term ‘‘employer securi- ties’’ shall include any securities of the em- ployer held by the plan. (24) Any group trust which otherwise meets the requirements of this section shall not be treated as not meeting such requirements on account of the participation or inclusion in such trust of the moneys of any plan or gov- ernmental unit described in section 818(a)(6). (25) REQUIREMENT THAT ACTUARIAL ASSUMP- TIONS BE SPECIFIED.—A defined benefit plan shall not be treated as providing definitely de- terminable benefits unless, whenever the amount of any benefit is to be determined on the basis of actuarial assumptions, such as- sumptions are specified in the plan in a way which precludes employer discretion. (26) ADDITIONAL PARTICIPATION REQUIRE- MENTS.— (A) IN GENERAL.—In the case of a trust which is a part of a defined benefit plan, such trust shall not constitute a qualified trust under this subsection unless on each day of the plan year such trust benefits at least the lesser of— (i) 50 employees of the employer, or (ii) the greater of— (I) 40 percent of all employees of the employer, or (II) 2 employees (or if there is only 1 employee, such employee). (B) TREATMENT OF EXCLUDABLE EMPLOY- EES.— (i) IN GENERAL.—A plan may exclude from consideration under this paragraph employees described in paragraphs (3) and (4)(A) of section 410(b). (ii) SEPARATE APPLICATION FOR CERTAIN EXCLUDABLE EMPLOYEES.—If employees de- scribed in section 410(b)(4)(B) are covered under a plan which meets the require- ments of subparagraph (A) separately with respect to such employees, such employees may be excluded from consideration in de- termining whether any plan of the em- ployer meets such requirements if— (I) the benefits for such employees are provided under the same plan as benefits for other employees, (II) the benefits provided to such em- ployees are not greater than comparable benefits provided to other employees under the plan, and (III) no highly compensated employee (within the meaning of section 414(q)) is included in the group of such employees for more than 1 year. (C) SPECIAL RULE FOR COLLECTIVE BAR- GAINING UNITS.—Except to the extent pro- vided in regulations, a plan covering only employees described in section 410(b)(3)(A) may exclude from consideration any employ- ees who are not included in the unit or units in which the covered employees are in- cluded. (D) PARAGRAPH NOT TO APPLY TO MULTIEM- PLOYER PLANS.—Except to the extent pro- vided in regulations, this paragraph shall not apply to employees in a multiemployer plan (within the meaning of section 414(f)) who are covered by collective bargaining agreements. (E) SPECIAL RULE FOR CERTAIN DISPOSITIONS OR ACQUISITIONS.—Rules similar to the rules of section 410(b)(6)(C) shall apply for pur- poses of this paragraph. (F) SEPARATE LINES OF BUSINESS.—At the election of the employer and with the con- sent of the Secretary, this paragraph may be applied separately with respect to each sepa- rate line of business of the employer. For purposes of this paragraph, the term ‘‘sepa- rate line of business’’ has the meaning given such term by section 414(r) (without regard to paragraph (2)(A) or (7) thereof). (G) EXCEPTION FOR GOVERNMENTAL PLANS.— This paragraph shall not apply to a govern- mental plan (within the meaning of section 414(d)). (H) REGULATIONS.—The Secretary may by regulation provide that any separate benefit structure, any separate trust, or any other separate arrangement is to be treated as a separate plan for purposes of applying this paragraph. (I) PROTECTED PARTICIPANTS.— (i) IN GENERAL.—A plan shall be deemed to satisfy the requirements of subpara- graph (A) if— (I) the plan is amended— (aa) to cease all benefit accruals, or (bb) to provide future benefit accru- als only to a closed class of partici- pants, (II) the plan satisfies subparagraph (A) (without regard to this subparagraph) as of the effective date of the amendment, and (III) the amendment was adopted be- fore April 5, 2017, or the plan is described in clause (ii). (ii) PLANS DESCRIBED.—A plan is de- scribed in this clause if the plan would be described in subsection (o)(1)(C), as applied for purposes of subsection (o)(1)(B)(iii)(IV) and by treating the effective date of the amendment as the date the class was closed for purposes of subsection (o)(1)(C). (iii) SPECIAL RULES.—For purposes of clause (i)(II), in applying section 410(b)(6)(C), the amendments described in clause (i) shall not be treated as a signifi- cant change in coverage under section 410(b)(6)(C)(i)(II). (iv) SPUN-OFF PLANS.—For purposes of this subparagraph, if a portion of a plan described in clause (i) is spun off to an- other employer, the treatment under clause (i) of the spun-off plan shall con- tinue with respect to the other employer. (27) DETERMINATIONS AS TO PROFIT-SHARING PLANS.— (A) CONTRIBUTIONS NEED NOT BE BASED ON PROFITS.—The determination of whether the Page 1186 TITLE 26—INTERNAL REVENUE CODE § 401 plan under which any contributions are made is a profit-sharing plan shall be made without regard to current or accumulated profits of the employer and without regard to whether the employer is a tax-exempt or- ganization. (B) PLAN MUST DESIGNATE TYPE.—In the case of a plan which is intended to be a money purchase pension plan or a profit- sharing plan, a trust forming part of such plan shall not constitute a qualified trust under this subsection unless the plan des- ignates such intent at such time and in such manner as the Secretary may prescribe. (28) ADDITIONAL REQUIREMENTS RELATING TO EMPLOYEE STOCK OWNERSHIP PLANS.— (A) IN GENERAL.—In the case of a trust which is part of an employee stock owner- ship plan (within the meaning of section 4975(e)(7)) or a plan which meets the require- ments of section 409(a), such trust shall not constitute a qualified trust under this sec- tion unless such plan meets the require- ments of subparagraphs (B) and (C). (B) DIVERSIFICATION OF INVESTMENTS.— (i) IN GENERAL.—A plan meets the re- quirements of this subparagraph if each qualified participant in the plan may elect within 90 days after the close of each plan year in the qualified election period to di- rect the plan as to the investment of at least 25 percent of the participant’s ac- count in the plan (to the extent such por- tion exceeds the amount to which a prior election under this subparagraph applies). In the case of the election year in which the participant can make his last election, the preceding sentence shall be applied by substituting ‘‘50 percent’’ for ‘‘25 percent’’. (ii) METHOD OF MEETING REQUIREMENTS.— A plan shall be treated as meeting the re- quirements of clause (i) if— (I) the portion of the participant’s ac- count covered by the election under clause (i) is distributed within 90 days after the period during which the elec- tion may be made, or (II) the plan offers at least 3 invest- ment options (not inconsistent with reg- ulations prescribed by the Secretary) to each participant making an election under clause (i) and within 90 days after the period during which the election may be made, the plan invests the por- tion of the participant’s account covered by the election in accordance with such election. (iii) QUALIFIED PARTICIPANT.—For pur- poses of this subparagraph, the term ‘‘qualified participant’’ means any em- ployee who has completed at least 10 years of participation under the plan and has at- tained age 55. (iv) QUALIFIED ELECTION PERIOD.—For purposes of this subparagraph, the term ‘‘qualified election period’’ means the 6- plan-year period beginning with the later of— (I) the 1st plan year in which the indi- vidual first became a qualified partici- pant, or (II) the 1st plan year beginning after December 31, 1986. For purposes of the preceding sentence, an employer may elect to treat an individual first becoming a qualified participant in the 1st plan year beginning in 1987 as hav- ing become a participant in the 1st plan year beginning in 1988. (v) EXCEPTION.—This subparagraph shall not apply to an applicable defined con- tribution plan (as defined in paragraph (35)(E)). (C) USE OF INDEPENDENT APPRAISER.—A plan meets the requirements of this subpara- graph if all valuations of employer securities which are not readily tradable on an estab- lished securities market with respect to ac- tivities carried on by the plan are by an independent appraiser. For purposes of the preceding sentence, the term ‘‘independent appraiser’’ means any appraiser meeting re- quirements similar to the requirements of the regulations prescribed under section 170(a)(1). (29) BENEFIT LIMITATIONS.—In the case of a defined benefit plan (other than a multiem- ployer plan or a CSEC plan) to which the re- quirements of section 412 apply, the trust of which the plan is a part shall not constitute a qualified trust under this subsection unless the plan meets the requirements of section 436. (30) LIMITATIONS ON ELECTIVE DEFERRALS.—In the case of a trust which is part of a plan under which elective deferrals (within the meaning of section 402(g)(3)) may be made with respect to any individual during a cal- endar year, such trust shall not constitute a qualified trust under this subsection unless the plan provides that the amount of such de- ferrals under such plan and all other plans, contracts, or arrangements of an employer maintaining such plan may not exceed the amount of the limitation in effect under sec- tion 402(g)(1)(A) for taxable years beginning in such calendar year. (31) DIRECT TRANSFER OF ELIGIBLE ROLLOVER DISTRIBUTIONS.— (A) IN GENERAL.—A trust shall not con- stitute a qualified trust under this section unless the plan of which such trust is a part provides that if the distributee of any eligi- ble rollover distribution— (i) elects to have such distribution paid directly to an eligible retirement plan, and (ii) specifies the eligible retirement plan to which such distribution is to be paid (in such form and at such time as the plan ad- ministrator may prescribe), such distribution shall be made in the form of a direct trustee-to-trustee transfer to the eligible retirement plan so specified. (B) CERTAIN MANDATORY DISTRIBUTIONS.— (i) IN GENERAL.—In case of a trust which is part of an eligible plan, such trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that if— (I) a distribution described in clause (ii) in excess of $1,000 is made, and Page 1187 TITLE 26—INTERNAL REVENUE CODE § 401 (II) the distributee does not make an election under subparagraph (A) and does not elect to receive the distribution di- rectly, the plan administrator shall make such transfer to an individual retirement plan of a designated trustee or issuer and shall notify the distributee in writing (either separately or as part of the notice under section 402(f)) that the distribution may be transferred to another individual retire- ment plan. (ii) ELIGIBLE PLAN.—For purposes of clause (i), the term ‘‘eligible plan’’ means a plan which provides that any nonforfeit- able accrued benefit for which the present value (as determined under section 411(a)(11)) does not exceed $7,000 shall be immediately distributed to the partici- pant. (C) LIMITATION.—Subparagraphs (A) and (B) shall apply only to the extent that the eligible rollover distribution would be in- cludible in gross income if not transferred as provided in subparagraph (A) (determined without regard to sections 402(c), 403(a)(4), 403(b)(8), and 457(e)(16)). The preceding sen- tence shall not apply to such distribution if the plan to which such distribution is trans- ferred— (i) is a qualified trust which is part of a plan which is a defined contribution plan and agrees to separately account for amounts so transferred, including sepa- rately accounting for the portion of such distribution which is includible in gross income and the portion of such distribu- tion which is not so includible, or (ii) is an eligible retirement plan de- scribed in clause (i) or (ii) of section 402(c)(8)(B). (D) ELIGIBLE ROLLOVER DISTRIBUTION.—For purposes of this paragraph, the term ‘‘eligi- ble rollover distribution’’ has the meaning given such term by section 402(f)(2)(A). (E) ELIGIBLE RETIREMENT PLAN.—For pur- poses of this paragraph, the term ‘‘eligible retirement plan’’ has the meaning given such term by section 402(c)(8)(B), except that a qualified trust shall be considered an eligi- ble retirement plan only if it is a defined contribution plan, the terms of which permit the acceptance of rollover distributions. (32) TREATMENT OF FAILURE TO MAKE CERTAIN PAYMENTS IF PLAN HAS LIQUIDITY SHORTFALL.— (A) IN GENERAL.—A trust forming part of a pension plan to which section 430(j)(4) or 433(f)(5) applies shall not be treated as fail- ing to constitute a qualified trust under this section merely because such plan ceases to make any payment described in subpara- graph (B) during any period that such plan has a liquidity shortfall (as defined in sec- tion 430(j)(4) or 433(f)(5)). (B) PAYMENTS DESCRIBED.—A payment is described in this subparagraph if such pay- ment is— (i) any payment, in excess of the month- ly amount paid under a single life annuity (plus any social security supplements de- scribed in the last sentence of section 411(a)(9)), to a participant or beneficiary whose annuity starting date (as defined in section 417(f)(2)) occurs during the period referred to in subparagraph (A), (ii) any payment for the purchase of an irrevocable commitment from an insurer to pay benefits, and (iii) any other payment specified by the Secretary by regulations. (C) PERIOD OF SHORTFALL.—For purposes of this paragraph, a plan has a liquidity short- fall during the period that there is an under- payment of an installment under section 430(j)(3) or 433(f) by reason of section 430(j)(4)(A) or 433(f)(5), respectively. (33) PROHIBITION ON BENEFIT INCREASES WHILE SPONSOR IS IN BANKRUPTCY.— (A) IN GENERAL.—A trust which is part of a plan to which this paragraph applies shall not constitute a qualified trust under this section if an amendment to such plan is adopted while the employer is a debtor in a case under title 11, United States Code, or similar Federal or State law, if such amend- ment increases liabilities of the plan by rea- son of— (i) any increase in benefits, (ii) any change in the accrual of benefits, or (iii) any change in the rate at which ben- efits become nonforfeitable under the plan, with respect to employees of the debtor, and such amendment is effective prior to the ef- fective date of such employer’s plan of reor- ganization. (B) EXCEPTIONS.—This paragraph shall not apply to any plan amendment if— (i) the plan, were such amendment to take effect, would have a funding target attainment percentage (as defined in sec- tion 430(d)(2)) of 100 percent or more, (ii) the Secretary determines that such amendment is reasonable and provides for only de minimis increases in the liabilities of the plan with respect to employees of the debtor, (iii) such amendment only repeals an amendment described in section 412(d)(2), or (iv) such amendment is required as a condition of qualification under this part. (C) PLANS TO WHICH THIS PARAGRAPH AP- PLIES.—This paragraph shall apply only to plans (other than multiemployer plans or CSEC plans) covered under section 4021 of the Employee Retirement Income Security Act of 1974. (D) EMPLOYER.—For purposes of this para- graph, the term ‘‘employer’’ means the em- ployer referred to in section 412(b)(1), with- out regard to section 412(b)(2). (34) BENEFITS OF MISSING PARTICIPANTS ON PLAN TERMINATION.—In the case of a plan cov- ered by title IV of the Employee Retirement Income Security Act of 1974, a trust forming part of such plan shall not be treated as fail- ing to constitute a qualified trust under this Page 1188 TITLE 26—INTERNAL REVENUE CODE § 401 section merely because the pension plan of which such trust is a part, upon its termi- nation, transfers benefits of missing partici- pants to the Pension Benefit Guaranty Cor- poration in accordance with section 4050 of such Act. (35) DIVERSIFICATION REQUIREMENTS FOR CER- TAIN DEFINED CONTRIBUTION PLANS.— (A) IN GENERAL.—A trust which is part of an applicable defined contribution plan shall not be treated as a qualified trust unless the plan meets the diversification requirements of subparagraphs (B), (C), and (D). (B) EMPLOYEE CONTRIBUTIONS AND ELECTIVE DEFERRALS INVESTED IN EMPLOYER SECURI- TIES.—In the case of the portion of an appli- cable individual’s account attributable to employee contributions and elective defer- rals which is invested in employer securi- ties, a plan meets the requirements of this subparagraph if the applicable individual may elect to direct the plan to divest any such securities and to reinvest an equivalent amount in other investment options meeting the requirements of subparagraph (D). (C) EMPLOYER CONTRIBUTIONS INVESTED IN EMPLOYER SECURITIES.—In the case of the portion of the account attributable to em- ployer contributions other than elective de- ferrals which is invested in employer securi- ties, a plan meets the requirements of this subparagraph if each applicable individual who— (i) is a participant who has completed at least 3 years of service, or (ii) is a beneficiary of a participant de- scribed in clause (i) or of a deceased partic- ipant, may elect to direct the plan to divest any such securities and to reinvest an equivalent amount in other investment options meeting the requirements of subparagraph (D). (D) INVESTMENT OPTIONS.— (i) IN GENERAL.—The requirements of this subparagraph are met if the plan of- fers not less than 3 investment options, other than employer securities, to which an applicable individual may direct the proceeds from the divestment of employer securities pursuant to this paragraph, each of which is diversified and has materially different risk and return characteristics. (ii) TREATMENT OF CERTAIN RESTRICTIONS AND CONDITIONS.— (I) TIME FOR MAKING INVESTMENT CHOICES.—A plan shall not be treated as failing to meet the requirements of this subparagraph merely because the plan limits the time for divestment and rein- vestment to periodic, reasonable oppor- tunities occurring no less frequently than quarterly. (II) CERTAIN RESTRICTIONS AND CONDI- TIONS NOT ALLOWED.—Except as provided in regulations, a plan shall not meet the requirements of this subparagraph if the plan imposes restrictions or conditions with respect to the investment of em- ployer securities which are not imposed on the investment of other assets of the plan. This subclause shall not apply to any restrictions or conditions imposed by reason of the application of securities laws. (E) APPLICABLE DEFINED CONTRIBUTION PLAN.—For purposes of this paragraph— (i) IN GENERAL.—The term ‘‘applicable defined contribution plan’’ means any de- fined contribution plan which holds any publicly traded employer securities. (ii) EXCEPTION FOR CERTAIN ESOPS.—Such term does not include an employee stock ownership plan if— (I) there are no contributions to such plan (or earnings thereunder) which are held within such plan and are subject to subsection (k) or (m), and (II) such plan is a separate plan for purposes of section 414(l) with respect to any other defined benefit plan or defined contribution plan maintained by the same employer or employers. (iii) EXCEPTION FOR ONE PARTICIPANT PLANS.—Such term does not include a one- participant retirement plan. (iv) ONE-PARTICIPANT RETIREMENT PLAN.—For purposes of clause (iii), the term ‘‘one-participant retirement plan’’ means a retirement plan that on the first day of the plan year— (I) covered only one individual (or the individual and the individual’s spouse) and the individual (or the individual and the individual’s spouse) owned 100 per- cent of the plan sponsor (whether or not incorporated), or (II) covered only one or more partners (or partners and their spouses) in the plan sponsor. (F) CERTAIN PLANS TREATED AS HOLDING PUBLICLY TRADED EMPLOYER SECURITIES.— (i) IN GENERAL.—Except as provided in regulations or in clause (ii), a plan holding employer securities which are not publicly traded employer securities shall be treated as holding publicly traded employer secu- rities if any employer corporation, or any member of a controlled group of corpora- tions which includes such employer cor- poration, has issued a class of stock which is a publicly traded employer security. (ii) EXCEPTION FOR CERTAIN CONTROLLED GROUPS WITH PUBLICLY TRADED SECURI- TIES.—Clause (i) shall not apply to a plan if— (I) no employer corporation, or parent corporation of an employer corporation, has issued any publicly traded employer security, and (II) no employer corporation, or parent corporation of an employer corporation, has issued any special class of stock which grants particular rights to, or bears particular risks for, the holder or issuer with respect to any corporation described in clause (i) which has issued any publicly traded employer security. (iii) DEFINITIONS.—For purposes of this subparagraph, the term— (I) ‘‘controlled group of corporations’’ has the meaning given such term by sec- Page 1189 TITLE 26—INTERNAL REVENUE CODE § 401 tion 1563(a), except that ‘‘50 percent’’ shall be substituted for ‘‘80 percent’’ each place it appears, (II) ‘‘employer corporation’’ means a corporation which is an employer main- taining the plan, and (III) ‘‘parent corporation’’ has the meaning given such term by section 424(e). (G) OTHER DEFINITIONS.—For purposes of this paragraph— (i) APPLICABLE INDIVIDUAL.—The term ‘‘applicable individual’’ means— (I) any participant in the plan, and (II) any beneficiary who has an ac- count under the plan with respect to which the beneficiary is entitled to exer- cise the rights of a participant. (ii) ELECTIVE DEFERRAL.—The term ‘‘elective deferral’’ means an employer contribution described in section 402(g)(3)(A). (iii) EMPLOYER SECURITY.—The term ‘‘employer security’’ has the meaning given such term by section 407(d)(1) of the Employee Retirement Income Security Act of 1974. (iv) EMPLOYEE STOCK OWNERSHIP PLAN.— The term ‘‘employee stock ownership plan’’ has the meaning given such term by section 4975(e)(7). (v) PUBLICLY TRADED EMPLOYER SECURI- TIES.—The term ‘‘publicly traded employer securities’’ means employer securities which are readily tradable on an estab- lished securities market. (vi) YEAR OF SERVICE.—The term ‘‘year of service’’ has the meaning given such term by section 411(a)(5). (H) TRANSITION RULE FOR SECURITIES AT- TRIBUTABLE TO EMPLOYER CONTRIBUTIONS.— (i) RULES PHASED IN OVER 3 YEARS.— (I) IN GENERAL.—In the case of the por- tion of an account to which subpara- graph (C) applies and which consists of employer securities acquired in a plan year beginning before January 1, 2007, subparagraph (C) shall only apply to the applicable percentage of such securities. This subparagraph shall be applied sepa- rately with respect to each class of secu- rities. (II) EXCEPTION FOR CERTAIN PARTICI- PANTS AGED 55 OR OVER.—Subclause (I) shall not apply to an applicable indi- vidual who is a participant who has at- tained age 55 and completed at least 3 years of service before the first plan year beginning after December 31, 2005. (ii) APPLICABLE PERCENTAGE.—For pur- poses of clause (i), the applicable percent- age shall be determined as follows: Plan year to which subparagraph (C) applies: The applicable percentage is: 1st ........................................... 33 2d ............................................ 66 3d and following ...................... 100. (36) DISTRIBUTIONS DURING WORKING RETIRE- MENT.— (A) IN GENERAL.—A trust forming part of a pension plan shall not be treated as failing to constitute a qualified trust under this section solely because the plan provides that a distribution may be made from such trust to an employee who has attained age 591⁄2 and who is not separated from employment at the time of such distribution. (B) CERTAIN EMPLOYEES IN THE BUILDING AND CONSTRUCTION INDUSTRY.—Subparagraph (A) shall be applied by substituting ‘‘age 55’’ for ‘‘age 591⁄2’’ in the case of a multiemployer plan described in section 4203(b)(1)(B)(i) of the Employee Retirement Income Security Act of 1974, with respect to individuals who were participants in such plan on or before April 30, 2013, if— (i) the trust to which subparagraph (A) applies was in existence before January 1, 1970, and (ii) before December 31, 2011, at a time when the plan provided that distributions may be made to an employee who has at- tained age 55 and who is not separated from employment at the time of such dis- tribution, the plan received at least 1 writ- ten determination from the Internal Rev- enue Service that the trust to which sub- paragraph (A) applies constituted a quali- fied trust under this section. (37) DEATH BENEFITS UNDER USERRA-QUALI- FIED ACTIVE MILITARY SERVICE.—A trust shall not constitute a qualified trust unless the plan provides that, in the case of a participant who dies while performing qualified military serv- ice (as defined in section 414(u)), the survivors of the participant are entitled to any addi- tional benefits (other than benefit accruals re- lating to the period of qualified military serv- ice) provided under the plan had the partici- pant resumed and then terminated employ- ment on account of death. (38) PORTABILITY OF LIFETIME INCOME.— (A) IN GENERAL.—Except as may be other- wise provided by regulations, a trust form- ing part of a defined contribution plan shall not be treated as failing to constitute a qualified trust under this section solely by reason of allowing— (i) qualified distributions of a lifetime income investment, or (ii) distributions of a lifetime income in- vestment in the form of a qualified plan distribution annuity contract, on or after the date that is 90 days prior to the date on which such lifetime income in- vestment is no longer authorized to be held as an investment option under the plan. (B) DEFINITIONS.—For purposes of this sub- section— (i) the term ‘‘qualified distribution’’ means a direct trustee-to-trustee transfer described in paragraph (31)(A) to an eligi- ble retirement plan (as defined in section 402(c)(8)(B)), (ii) the term ‘‘lifetime income invest- ment’’ means an investment option which is designed to provide an employee with election rights— (I) which are not uniformly available with respect to other investment options under the plan, and Page 1190 TITLE 26—INTERNAL REVENUE CODE § 401 (II) which are to a lifetime income fea- ture available through a contract or other arrangement offered under the plan (or under another eligible retire- ment plan (as so defined), if paid by means of a direct trustee-to-trustee transfer described in paragraph (31)(A) to such other eligible retirement plan), (iii) the term ‘‘lifetime income feature’’ means— (I) a feature which guarantees a min- imum level of income annually (or more frequently) for at least the remainder of the life of the employee or the joint lives of the employee and the employee’s des- ignated beneficiary, or (II) an annuity payable on behalf of the employee under which payments are made in substantially equal periodic payments (not less frequently than an- nually) over the life of the employee or the joint lives of the employee and the employee’s designated beneficiary, and (iv) the term ‘‘qualified plan distribution annuity contract’’ means an annuity con- tract purchased for a participant and dis- tributed to the participant by a plan or contract described in subparagraph (B) of section 402(c)(8) (without regard to clauses (i) and (ii) thereof). Paragraphs (11), (12), (13), (14), (15), (19), and (20) shall apply only in the case of a plan to which section 411 (relating to minimum vesting stand- ards) applies without regard to subsection (e)(2) of such section. (b) Certain plan amendments (1) Certain retroactive changes in plan A stock bonus, pension, profit-sharing, or annuity plan shall be considered as satisfying the requirements of subsection (a) for the pe- riod beginning with the date on which it was put into effect, or for the period beginning with the earlier of the date on which there was adopted or put into effect any amendment which caused the plan to fail to satisfy such requirements, and ending with the time pre- scribed by law for filing the return of the em- ployer for his taxable year in which such plan or amendment was adopted (including exten- sions thereof) or such later time as the Sec- retary may designate, if all provisions of the plan which are necessary to satisfy such re- quirements are in effect by the end of such pe- riod and have been made effective for all pur- poses for the whole of such period. (2) Adoption of plan If an employer adopts a stock bonus, pen- sion, profit-sharing, or annuity plan after the close of a taxable year but before the time pre- scribed by law for filing the return of the em- ployer for the taxable year (including exten- sions thereof), the employer may elect to treat the plan as having been adopted as of the last day of the taxable year. In the case of an indi- vidual who owns the entire interest in an un- incorporated trade or business, and who is the only employee of such trade or business, any elective deferrals (as defined in section 402(g)(3)) under a qualified cash or deferred ar- rangement to which the preceding sentence applies, which are made by such individual be- fore the time for filing the return of such indi- vidual for the taxable year (determined with- out regard to any extensions) ending after or with the end of the plan’s first plan year, shall be treated as having been made before the end of such first plan year. (3) Retroactive plan amendments that increase benefit accruals If— (A) an employer amends a stock bonus, pension, profit-sharing, or annuity plan to increase benefits accrued under the plan ef- fective as of any date during the imme- diately preceding plan year (other than in- creasing the amount of matching contribu- tions (as defined in subsection (m)(4)(A))), (B) such amendment would not otherwise cause the plan to fail to meet any of the re- quirements of this subchapter, and (C) such amendment is adopted before the time prescribed by law for filing the return of the employer for the taxable year (includ- ing extensions thereof) which includes the date described in subparagraph (A), the employer may elect to treat such amend- ment as having been adopted as of the last day of the plan year in which the amendment is ef- fective. (c) Definitions and rules relating to self-em- ployed individuals and owner-employees For purposes of this section— (1) Self-employed individual treated as em- ployee (A) In general The term ‘‘employee’’ includes, for any taxable year, an individual who is a self-em- ployed individual for such taxable year. (B) Self-employed individual The term ‘‘self-employed individual’’ means, with respect to any taxable year, an individual who has earned income (as de- fined in paragraph (2)) for such taxable year. To the extent provided in regulations pre- scribed by the Secretary, such term also in- cludes, for any taxable year— (i) an individual who would be a self-em- ployed individual within the meaning of the preceding sentence but for the fact that the trade or business carried on by such individual did not have net profits for the taxable year, and (ii) an individual who has been a self-em- ployed individual within the meaning of the preceding sentence for any prior tax- able year. (2) Earned income (A) In general The term ‘‘earned income’’ means the net earnings from self-employment (as defined in section 1402(a)), but such net earnings shall be determined— (i) only with respect to a trade or busi- ness in which personal services of the tax- payer are a material income-producing factor, Page 1191 TITLE 26—INTERNAL REVENUE CODE § 401 (ii) without regard to paragraphs (4) and (5) of section 1402(c), (iii) in the case of any individual who is treated as an employee under subpara- graph (A), (C), or (D) of section 3121(d)(3), without regard to section 1402(c)(2), (iv) without regard to items which are not included in gross income for purposes of this chapter, and the deductions prop- erly allocable to or chargeable against such items, (v) with regard to the deductions allowed by section 404 to the taxpayer, and (vi) with regard to the deduction allowed to the taxpayer by section 164(f). For purposes of this subparagraph, section 1402, as in effect for a taxable year ending on December 31, 1962, shall be treated as having been in effect for all taxable years ending be- fore such date. For purposes of this part only (other than sections 419 and 419A), this sub- paragraph shall be applied as if the term ‘‘trade or business’’ for purposes of section 1402 included service described in section 1402(c)(6). [(B) Repealed] (C) Income from disposition of certain prop- erty For purposes of this section, the term ‘‘earned income’’ includes gains (other than any gain which is treated under any provi- sion of this chapter as gain from the sale or exchange of a capital asset) and net earnings derived from the sale or other disposition of, the transfer of any interest in, or the licens- ing of the use of property (other than good will) by an individual whose personal efforts created such property. (3) Owner-employee The term ‘‘owner-employee’’ means an em- ployee who— (A) owns the entire interest in an unincor- porated trade or business, or (B) in the case of a partnership, is a part- ner who owns more than 10 percent of either the capital interest or the profits interest in such partnership. To the extent provided in regulations pre- scribed by the Secretary, such term also means an individual who has been an owner- employee within the meaning of the preceding sentence. (4) Employer An individual who owns the entire interest in an unincorporated trade or business shall be treated as his own employer. A partnership shall be treated as the employer of each part- ner who is an employee within the meaning of paragraph (1). (5) Contributions on behalf of owner-employ- ees The term ‘‘contribution on behalf of an owner-employee’’ includes, except as the con- text otherwise requires, a contribution under a plan— (A) by the employer for an owner-em- ployee, and (B) by an owner-employee as an employee. (6) Special rule for certain fishermen For purposes of this subsection, the term ‘‘self-employed individual’’ includes an indi- vidual described in section 3121(b)(20) (relating to certain fishermen). (d) Contribution limit on owner-employees A trust forming part of a pension or profit- sharing plan which provides contributions or benefits for employees some or all of whom are owner-employees shall constitute a qualified trust under this section only if, in addition to meeting the requirements of subsection (a), the plan provides that contributions on behalf of any owner-employee may be made only with re- spect to the earned income of such owner-em- ployee which is derived from the trade or busi- ness with respect to which such plan is estab- lished. [(e) Repealed. Pub. L. 98–369, div. A, title VII, § 713(d)(3), July 18, 1984, 98 Stat. 958] (f) Certain custodial accounts and contracts For purposes of this title, a custodial account, an annuity contract, or a contract (other than a life, health or accident, property, casualty, or li- ability insurance contract) issued by an insur- ance company qualified to do business in a State shall be treated as a qualified trust under this section if— (1) the custodial account or contract would, except for the fact that it is not a trust, con- stitute a qualified trust under this section, and (2) in the case of a custodial account the as- sets thereof are held by a bank (as defined in section 408(n)) or another person who dem- onstrates, to the satisfaction of the Secretary, that the manner in which he will hold the as- sets will be consistent with the requirements of this section. For purposes of this title, in the case of a custo- dial account or contract treated as a qualified trust under this section by reason of this sub- section, the person holding the assets of such ac- count or holding such contract shall be treated as the trustee thereof. (g) Annuity defined For purposes of this section and sections 402, 403, and 404, the term ‘‘annuity’’ includes a face- amount certificate, as defined in section 2(a)(15) of the Investment Company Act of 1940 (15 U.S.C., sec. 80a–2); but does not include any con- tract or certificate issued after December 31, 1962, which is transferable, if any person other than the trustee of a trust described in section 401(a) which is exempt from tax under section 501(a) is the owner of such contract or certifi- cate. (h) Medical, etc., benefits for retired employees and their spouses and dependents Under regulations prescribed by the Secretary, and subject to the provisions of section 420, a pension or annuity plan may provide for the payment of benefits for sickness, accident, hos- pitalization, and medical expenses of retired em- ployees, their spouses and their dependents, but only if— Page 1192 TITLE 26—INTERNAL REVENUE CODE § 401 (1) such benefits are subordinate to the re- tirement benefits provided by the plan, (2) a separate account is established and maintained for such benefits, (3) the employer’s contributions to such sep- arate account are reasonable and ascertain- able, (4) it is impossible, at any time prior to the satisfaction of all liabilities under the plan to provide such benefits, for any part of the cor- pus or income of such separate account to be (within the taxable year or thereafter) used for, or diverted to, any purpose other than the providing of such benefits, (5) notwithstanding the provisions of sub- section (a)(2), upon the satisfaction of all li- abilities under the plan to provide such bene- fits, any amount remaining in such separate account must, under the terms of the plan, be returned to the employer, and (6) in the case of an employee who is a key employee, a separate account is established and maintained for such benefits payable to such employee (and his spouse and dependents) and such benefits (to the extent attributable to plan years beginning after March 31, 1984, for which the employee is a key employee) are only payable to such employee (and his spouse and dependents) from such separate account. For purposes of paragraph (6), the term ‘‘key employee’’ means any employee, who at any time during the plan year or any preceding plan year during which contributions were made on behalf of such employee, is or was a key em- ployee as defined in section 416(i). In no event shall the requirements of paragraph (1) be treat- ed as met if the aggregate actual contributions for medical benefits, when added to actual con- tributions for life insurance protection under the plan, exceed 25 percent of the total actual contributions to the plan (other than contribu- tions to fund past service credits) after the date on which the account is established. For pur- poses of this subsection, the term ‘‘dependent’’ shall include any individual who is a child (as defined in section 152(f)(1)) of a retired employee who as of the end of the calendar year has not attained age 27. (i) Certain union-negotiated pension plans In the case of a trust forming part of a pension plan which has been determined by the Sec- retary to constitute a qualified trust under sub- section (a) and to be exempt from taxation under section 501(a) for a period beginning after contributions were first made to or for such trust, if it is shown to the satisfaction of the Secretary that— (1) such trust was created pursuant to a col- lective bargaining agreement between em- ployee representatives and one or more em- ployers, (2) any disbursements of contributions, made to or for such trust before the time as of which the Secretary determined that the trust con- stituted a qualified trust, substantially com- plied with the terms of the trust, and the plan of which the trust is a part, as subsequently qualified, and (3) before the time as of which the Secretary determined that the trust constitutes a quali- fied trust, the contributions to or for such trust were not used in a manner which would jeopardize the interests of its beneficiaries, then such trust shall be considered as having constituted a qualified trust under subsection (a) and as having been exempt from taxation under section 501(a) for the period beginning on the date on which contributions were first made to or for such trust and ending on the date such trust first constituted (without regard to this subsection) a qualified trust under subsection (a). [(j) Repealed. Pub. L. 97–248, title II, § 238(b), Sept. 3, 1982, 96 Stat. 512] (k) Cash or deferred arrangements (1) General rule A profit-sharing or stock bonus plan, a pre- ERISA money purchase plan, or a rural coop- erative plan shall not be considered as not sat- isfying the requirements of subsection (a) merely because the plan includes a qualified cash or deferred arrangement. (2) Qualified cash or deferred arrangement A qualified cash or deferred arrangement is any arrangement which is part of a profit- sharing or stock bonus plan, a pre-ERISA money purchase plan, or a rural cooperative plan which meets the requirements of sub- section (a)— (A) under which a covered employee may elect to have the employer make payments as contributions to a trust under the plan on behalf of the employee, or to the employee directly in cash; (B) under which amounts held by the trust which are attributable to employer con- tributions made pursuant to the employee’s election— (i) may not be distributable to partici- pants or other beneficiaries earlier than— (I) severance from employment, death, or disability, (II) an event described in paragraph (10), (III) in the case of a profit-sharing or stock bonus plan, the attainment of age 591⁄2, (IV) subject to the provisions of para- graph (14), upon hardship of the em- ployee, (V) in the case of a qualified reservist distribution (as defined in section 72(t)(2)(G)(iii)), the date on which a pe- riod referred to in subclause (III) of such section begins, or (VI) except as may be otherwise pro- vided by regulations, with respect to amounts invested in a lifetime income investment (as defined in subsection (a)(38)(B)(ii)), the date that is 90 days prior to the date that such lifetime in- come investment may no longer be held as an investment option under the ar- rangement, (ii) will not be distributable merely by reason of the completion of a stated period of participation or the lapse of a fixed number of years, and Page 1193 TITLE 26—INTERNAL REVENUE CODE § 401 (iii) except as may be otherwise provided by regulations, in the case of amounts de- scribed in clause (i)(VI), will be distributed only in the form of a qualified distribution (as defined in subsection (a)(38)(B)(i)) or a qualified plan distribution annuity con- tract (as defined in subsection (a)(38)(B)(iv)), (C) which provides that an employee’s right to his accrued benefit derived from em- ployer contributions made to the trust pur- suant to his election is nonforfeitable, and (D) which does not require, as a condition of participation in the arrangement, that an employee complete a period of service with the employer (or employers) maintaining the plan extending beyond the close of the earlier of— (i) the period permitted under section 410(a)(1) (determined without regard to subparagraph (B)(i) thereof), or (ii) subject to the provisions of para- graph (15), the first period of 2 consecutive 12-month periods during each of which the employee has at least 500 hours of service. (3) Application of participation and discrimina- tion standards (A) A cash or deferred arrangement shall not be treated as a qualified cash or deferred arrangement unless— (i) those employees eligible to benefit under the arrangement satisfy the provi- sions of section 410(b)(1), and (ii) the actual deferral percentage for eli- gible highly compensated employees (as defined in paragraph (5)) for the plan year bears a relationship to the actual deferral percentage for all other eligible employees for the preceding plan year which meets either of the following tests: (I) The actual deferral percentage for the group of eligible highly compensated employees is not more than the actual deferral percentage of all other eligible employees multiplied by 1.25. (II) The excess of the actual deferral percentage for the group of eligible high- ly compensated employees over that of all other eligible employees is not more than 2 percentage points, and the actual deferral percentage for the group of eli- gible highly compensated employees is not more than the actual deferral per- centage of all other eligible employees multiplied by 2. If 2 or more plans which include cash or deferred arrangements are considered as 1 plan for purposes of section 401(a)(4) or 410(b), the cash or deferred arrangements included in such plans shall be treated as 1 arrangement for purposes of this sub- paragraph. If any highly compensated employee is a participant under 2 or more cash or deferred arrangements of the employer, for purposes of determining the deferral percentage with respect to such employee, all such cash or deferred arrangements shall be treated as 1 cash or deferred arrangement. An arrange- ment may apply clause (ii) by using the plan year rather than the preceding plan year if the employer so elects, except that if such an election is made, it may not be changed except as provided by the Secretary. (B) For purposes of subparagraph (A), the actual deferral percentage for a specified group of employees for a plan year shall be the average of the ratios (calculated sepa- rately for each employee in such group) of— (i) the amount of employer contributions actually paid over to the trust on behalf of each such employee for such plan year, to (ii) the employee’s compensation for such plan year. (C) A cash or deferred arrangement shall be treated as meeting the requirements of subsection (a)(4) with respect to contribu- tions if the requirements of subparagraph (A)(ii) are met. (D) For purposes of subparagraph (B), the employer contributions on behalf of any em- ployee— (i) shall include any employer contribu- tions made pursuant to the employee’s election under paragraph (2), and (ii) under such rules as the Secretary may prescribe, may, at the election of the employer, include— (I) matching contributions (as defined in 401(m)(4)(A)) which meet the require- ments of paragraph (2)(B) and (C), and (II) qualified nonelective contributions (within the meaning of section 401(m)(4)(C)). (E) For purposes of this paragraph, in the case of the first plan year of any plan (other than a successor plan), the amount taken into account as the actual deferral percent- age of nonhighly compensated employees for the preceding plan year shall be— (i) 3 percent, or (ii) if the employer makes an election under this subclause, the actual deferral percentage of nonhighly compensated em- ployees determined for such first plan year. (F) SPECIAL RULE FOR EARLY PARTICIPA- TION.—If an employer elects to apply section 410(b)(4)(B) in determining whether a cash or deferred arrangement meets the require- ments of subparagraph (A)(i), the employer may, in determining whether the arrange- ment meets the requirements of subpara- graph (A)(ii), exclude from consideration all eligible employees (other than highly com- pensated employees) who have not met the minimum age and service requirements of section 410(a)(1)(A). (G) GOVERNMENTAL PLAN.—A governmental plan (within the meaning of section 414(d)) shall be treated as meeting the requirements of this paragraph. (4) Other requirements (A) Benefits (other than matching contribu- tions) must not be contingent on election to defer A cash or deferred arrangement of any em- ployer shall not be treated as a qualified Page 1194 TITLE 26—INTERNAL REVENUE CODE § 401 2 So in original. cash or deferred arrangement if any other benefit (other than a de minimis financial incentive (not paid for with plan assets) pro- vided to employees who elect to have the employer make contributions under the ar- rangement in lieu of receiving cash) is condi- tioned (directly or indirectly) on the em- ployee electing to have the employer make or not make contributions under the ar- rangement in lieu of receiving cash. The pre- ceding sentence shall not apply to any matching contribution (as defined in section 401(m)) made by reason of such an election. (B) Eligibility of State and local governments and tax-exempt organizations (i) Tax-exempts eligible Except as provided in clause (ii), any or- ganization exempt from tax under this subtitle may include a qualified cash or deferred arrangement as part of a plan maintained by it. (ii) Governments ineligible A cash or deferred arrangement shall not be treated as a qualified cash or deferred arrangement if it is part of a plan main- tained by a State or local government or political subdivision thereof, or any agen- cy or instrumentality thereof. This clause shall not apply to a rural cooperative plan or to a plan of an employer described in clause (iii). (iii) Treatment of Indian tribal govern- ments An employer which is an Indian tribal government (as defined in section 7701(a)(40)), a subdivision of an Indian trib- al government (determined in accordance with section 7871(d)), an agency or instru- mentality of an Indian tribal government or subdivision thereof, or a corporation chartered under Federal, State, or tribal law which is owned in whole or in part by any of the foregoing may include a quali- fied cash or deferred arrangement as part of a plan maintained by the employer. (C) Coordination with other plans Except as provided in section 401(m), any employer contribution made pursuant to an employee’s election under a qualified cash or deferred arrangement shall not be taken into account for purposes of determining whether any other plan meets the require- ments of section 401(a) or 410(b). This sub- paragraph shall not apply for purposes of de- termining whether a plan meets the average benefit requirement of section 410(b)(2)(A)(ii). (5) Highly compensated employee For purposes of this subsection, the term ‘‘highly compensated employee’’ has the meaning given such term by section 414(q). (6) Pre-ERISA money purchase plan For purposes of this subsection, the term ‘‘pre-ERISA money purchase plan’’ means a pension plan— (A) which is a defined contribution plan (as defined in section 414(i)), (B) which was in existence on June 27, 1974, and which, on such date, included a salary reduction arrangement, and (C) under which neither the employee con- tributions nor the employer contributions may exceed the levels provided for by the contribution formula in effect under the plan on such date. (7) Rural cooperative plan For purposes of this subsection— (A) In general The term ‘‘rural cooperative plan’’ means any pension plan— (i) which is a defined contribution plan (as defined in section 414(i)), and (ii) which is established and maintained by a rural cooperative. (B) Rural cooperative defined For purposes of subparagraph (A), the term ‘‘rural cooperative’’ means— (i) any organization which— (I) is engaged primarily in providing electric service on a mutual or coopera- tive basis, or (II) is engaged primarily in providing electric service to the public in its area of service and which is exempt from tax under this subtitle or which is a State or local government (or an agency or in- strumentality thereof), other than a mu- nicipality (or an agency or instrumen- tality thereof), (ii) any organization described in para- graph (4) or (6) of section 501(c) and at least 80 percent of the members of which are organizations described in clause (i), (iii) a cooperative telephone company described in section 501(c)(12), (iv) any organization which— (I) is a mutual irrigation or ditch com- pany described in section 501(c)(12) (with- out regard to the 85 percent requirement thereof), or (II) is a district organized under the laws of a State as a municipal corpora- tion for the purpose of irrigation, water conservation, or drainage, and (v) an organization which is a national association of organizations described in clause (i), (ii),,2 (iii), or (iv). (C) Special rule for certain distributions A rural cooperative plan which includes a qualified cash or deferred arrangement shall not be treated as violating the requirements of section 401(a) or of paragraph (2) merely by reason of a hardship distribution or a dis- tribution to a participant after attainment of age 591⁄2. For purposes of this section, the term ‘‘hardship distribution’’ means a dis- tribution described in paragraph (2)(B)(i)(IV) (without regard to the limitation of its ap- plication to profit-sharing or stock bonus plans). Page 1195 TITLE 26—INTERNAL REVENUE CODE § 401 (8) Arrangement not disqualified if excess con- tributions distributed (A) In general A cash or deferred arrangement shall not be treated as failing to meet the require- ments of clause (ii) of paragraph (3)(A) for any plan year if, before the close of the fol- lowing plan year— (i) the amount of the excess contribu- tions for such plan year (and any income allocable to such contributions through the end of such year) is distributed, or (ii) to the extent provided in regulations, the employee elects to treat the amount of the excess contributions as an amount dis- tributed to the employee and then contrib- uted by the employee to the plan. Any distribution of excess contributions (and income) may be made without regard to any other provision of law. (B) Excess contributions For purposes of subparagraph (A), the term ‘‘excess contributions’’ means, with respect to any plan year, the excess of— (i) the aggregate amount of employer contributions actually paid over to the trust on behalf of highly compensated em- ployees for such plan year, over (ii) the maximum amount of such con- tributions permitted under the limitations of clause (ii) of paragraph (3)(A) (deter- mined by reducing contributions made on behalf of highly compensated employees in order of the actual deferral percentages be- ginning with the highest of such percent- ages). (C) Method of distributing excess contribu- tions Any distribution of the excess contribu- tions for any plan year shall be made to highly compensated employees on the basis of the amount of contributions by, or on be- half of, each of such employees. (D) Additional tax under section 72(t) not to apply No tax shall be imposed under section 72(t) on any amount required to be distributed under this paragraph. (E) Treatment of matching contributions for- feited by reason of excess deferral or contribution or permissible withdrawal For purposes of paragraph (2)(C), a match- ing contribution (within the meaning of sub- section (m)) shall not be treated as forfeit- able merely because such contribution is for- feitable if the contribution to which the matching contribution relates is treated as an excess contribution under subparagraph (B), an excess deferral under section 402(g)(2)(A), a permissible withdrawal under section 414(w), or an excess aggregate con- tribution under section 401(m)(6)(B). (F) Cross reference For excise tax on certain excess contributions, see section 4979. (9) Compensation For purposes of this subsection, the term ‘‘compensation’’ has the meaning given such term by section 414(s). (10) Distributions upon termination of plan (A) In general An event described in this subparagraph is the termination of the plan without estab- lishment or maintenance of another defined contribution plan (other than an employee stock ownership plan as defined in section 4975(e)(7)). (B) Distributions must be lump sum distribu- tions (i) In general A termination shall not be treated as de- scribed in subparagraph (A) with respect to any employee unless the employee receives a lump sum distribution by reason of the termination. (ii) Lump-sum distribution For purposes of this subparagraph, the term ‘‘lump-sum distribution’’ has the meaning given such term by section 402(e)(4)(D) (without regard to subclauses (I), (II), (III), and (IV) of clause (i) thereof). Such term includes a distribution of an an- nuity contract from— (I) a trust which forms a part of a plan described in section 401(a) and which is exempt from tax under section 501(a), or (II) an annuity plan described in sec- tion 403(a). (11) Adoption of simple plan to meet non- discrimination tests (A) In general A cash or deferred arrangement main- tained by an eligible employer shall be treated as meeting the requirements of para- graph (3)(A)(ii) if such arrangement meets— (i) the contribution requirements of sub- paragraph (B), (ii) the exclusive plan requirements of subparagraph (C), and (iii) the vesting requirements of section 408(p)(3). (B) Contribution requirements (i) In general The requirements of this subparagraph are met if, under the arrangement— (I) an employee may elect to have the employer make elective contributions for the year on behalf of the employee to a trust under the plan in an amount which is expressed as a percentage of compensation of the employee but which in no event exceeds the amount in effect under section 408(p)(2)(A)(ii) (after the application of any election under section 408(p)(2)(E)(i)(II)), (II) the employer is required to make a matching contribution to the trust for the year in an amount equal to so much of the amount the employee elects under subclause (I) as does not exceed 3 percent of compensation for the year, Page 1196 TITLE 26—INTERNAL REVENUE CODE § 401 (III) the employer may make nonelec- tive contributions of a uniform percent- age (up to 10 percent) of compensation, but not to exceed the amount in effect under section 408(p)(2)(A)(iv) in any year, for each employee who is eligible to par- ticipate in the arrangement and who has at least $5,000 of compensation from the employer for the year, and (IV) no other contributions may be made other than contributions described in subclause (I), (II), or (III). (ii) Employer may elect 2-percent nonelec- tive contribution An employer shall be treated as meeting the requirements of clause (i)(II) for any year if, in lieu of the contributions de- scribed in such clause, the employer elects (pursuant to the terms of the arrange- ment) to make nonelective contributions of 2 percent of compensation for each em- ployee who is eligible to participate in the arrangement and who has at least $5,000 of compensation from the employer for the year. If an employer makes an election under this subparagraph for any year, the employer shall notify employees of such election within a reasonable period of time before the 60th day before the beginning of such year. (iii) Administrative requirements (I) In general Rules similar to the rules of subpara- graphs (B) and (C) of section 408(p)(5) shall apply for purposes of this subpara- graph. (II) Notice of election period The requirements of this subparagraph shall not be treated as met with respect to any year unless the employer notifies each employee eligible to participate, within a reasonable period of time before the 60th day before the beginning of such year (and, for the first year the employee is so eligible, the 60th day before the first day such employee is so eligible), of the rules similar to the rules of section 408(p)(5)(C) which apply by reason of sub- clause (I). (C) Exclusive plan requirement The requirements of this subparagraph are met for any year to which this paragraph ap- plies if no contributions were made, or bene- fits were accrued, for services during such year under any qualified plan of the em- ployer on behalf of any employee eligible to participate in the cash or deferred arrange- ment, other than contributions described in subparagraph (B). (D) Definitions and special rule (i) Definitions For purposes of this paragraph, any term used in this paragraph which is also used in section 408(p) shall have the meaning given such term by such section. (ii) Coordination with top-heavy rules A plan meeting the requirements of this paragraph for any year shall not be treated as a top-heavy plan under section 416 for such year if such plan allows only con- tributions required under this paragraph. (E) Employers electing increased contribu- tions In the case of an employer which applies an election under section 408(p)(2)(E)(i)(II) for purposes of the contribution require- ments of this paragraph under subparagraph (B)(i)(I), rules similar to the rules of sub- paragraphs (B)(iii), (C)(ii)(IV), and (G) of sec- tion 408(p)(2) shall apply for purposes of sub- paragraphs (B)(i)(II) and (B)(ii) of this para- graph. (12) Alternative methods of meeting non- discrimination requirements (A) In general A cash or deferred arrangement shall be treated as meeting the requirements of para- graph (3)(A)(ii) if such arrangement— (i) meets the contribution requirements of subparagraph (B) and the notice require- ments of subparagraph (D), or (ii) meets the contribution requirements of subparagraph (C). (B) Matching contributions (i) In general The requirements of this subparagraph are met if, under the arrangement, the em- ployer makes matching contributions on behalf of each employee who is not a high- ly compensated employee in an amount equal to— (I) 100 percent of the elective contribu- tions of the employee to the extent such elective contributions do not exceed 3 percent of the employee’s compensation, and (II) 50 percent of the elective contribu- tions of the employee to the extent that such elective contributions exceed 3 per- cent but do not exceed 5 percent of the employee’s compensation. (ii) Rate for highly compensated employees The requirements of this subparagraph are not met if, under the arrangement, the rate of matching contribution with respect to any elective contribution of a highly compensated employee at any rate of elec- tive contribution is greater than that with respect to an employee who is not a highly compensated employee. (iii) Alternative plan designs If the rate of any matching contribution with respect to any rate of elective con- tribution is not equal to the percentage re- quired under clause (i), an arrangement shall not be treated as failing to meet the requirements of clause (i) if— (I) the rate of an employer’s matching contribution does not increase as an em- ployee’s rate of elective contributions increase, and (II) the aggregate amount of matching contributions at such rate of elective contribution is at least equal to the ag- gregate amount of matching contribu- Page 1197 TITLE 26—INTERNAL REVENUE CODE § 401 tions which would be made if matching contributions were made on the basis of the percentages described in clause (i). (C) Nonelective contributions The requirements of this subparagraph are met if, under the arrangement, the employer is required, without regard to whether the employee makes an elective contribution or employee contribution, to make a contribu- tion to a defined contribution plan on behalf of each employee who is not a highly com- pensated employee and who is eligible to participate in the arrangement in an amount equal to at least 3 percent of the employee’s compensation. (D) Notice requirement An arrangement meets the requirements of this paragraph if, under the arrangement, each employee eligible to participate is, within a reasonable period before any year, given written notice of the employee’s rights and obligations under the arrangement which— (i) is sufficiently accurate and com- prehensive to apprise the employee of such rights and obligations, and (ii) is written in a manner calculated to be understood by the average employee eli- gible to participate. (E) Other requirements (i) Withdrawal and vesting restrictions An arrangement shall not be treated as meeting the requirements of subparagraph (B) or (C) of this paragraph unless the re- quirements of subparagraphs (B) and (C) of paragraph (2) are met with respect to all employer contributions (including match- ing contributions) taken into account in determining whether the requirements of subparagraphs (B) and (C) of this para- graph are met. (ii) Social security and similar contribu- tions not taken into account An arrangement shall not be treated as meeting the requirements of subparagraph (B) or (C) unless such requirements are met without regard to subsection (l), and, for purposes of subsection (l), employer contributions under subparagraph (B) or (C) shall not be taken into account. (F) Timing of plan amendment for employer making nonelective contributions (i) In general Except as provided in clause (ii), a plan may be amended after the beginning of a plan year to provide that the requirements of subparagraph (C) shall apply to the ar- rangement for the plan year, but only if the amendment is adopted— (I) at any time before the 30th day be- fore the close of the plan year, or (II) at any time before the last day under paragraph (8)(A) for distributing excess contributions for the plan year. (ii) Exception where plan provided for matching contributions Clause (i) shall not apply to any plan year if the plan provided at any time dur- ing the plan year that the requirements of subparagraph (B) or paragraph (13)(D)(i)(I) applied to the plan year. (iii) 4-percent contribution requirement Clause (i)(II) shall not apply to an ar- rangement unless the amount of the con- tributions described in subparagraph (C) which the employer is required to make under the arrangement for the plan year with respect to any employee is an amount equal to at least 4 percent of the employ- ee’s compensation. (G) Other plans An arrangement shall be treated as meet- ing the contribution requirements under subparagraph (B) or (C) if any other plan maintained by the employer meets such re- quirements with respect to employees eligi- ble under the arrangement. (13) Alternative method for automatic con- tribution arrangements to meet non- discrimination requirements (A) In general A qualified automatic contribution ar- rangement shall be treated as meeting the requirements of paragraph (3)(A)(ii). (B) Qualified automatic contribution ar- rangement For purposes of this paragraph, the term ‘‘qualified automatic contribution arrange- ment’’ means a cash or deferred arrange- ment— (i) which is described in subparagraph (D)(i)(I) and meets the applicable require- ments of subparagraphs (C) through (E), or (ii) which is described in subparagraph (D)(i)(II) and meets the applicable require- ments of subparagraphs (C) and (D). (C) Automatic deferral (i) In general The requirements of this subparagraph are met if, under the arrangement, each employee eligible to participate in the ar- rangement is treated as having elected to have the employer make elective contribu- tions in an amount equal to a qualified percentage of compensation. (ii) Election out The election treated as having been made under clause (i) shall cease to apply with respect to any employee if such em- ployee makes an affirmative election— (I) to not have such contributions made, or (II) to make elective contributions at a level specified in such affirmative elec- tion. (iii) Qualified percentage For purposes of this subparagraph, the term ‘‘qualified percentage’’ means, with respect to any employee, any percentage determined under the arrangement if such percentage is applied uniformly, does not exceed 15 percent (10 percent during the period described in subclause (I)), and is at least— Page 1198 TITLE 26—INTERNAL REVENUE CODE § 401 (I) 3 percent during the period ending on the last day of the first plan year which begins after the date on which the first elective contribution described in clause (i) is made with respect to such employee, (II) 4 percent during the first plan year following the plan year described in sub- clause (I), (III) 5 percent during the second plan year following the plan year described in subclause (I), and (IV) 6 percent during any subsequent plan year. (iv) Automatic deferral for current employ- ees not required Clause (i) may be applied without taking into account any employee who— (I) was eligible to participate in the ar- rangement (or a predecessor arrange- ment) immediately before the date on which such arrangement becomes a qualified automatic contribution ar- rangement (determined after application of this clause), and (II) had an election in effect on such date either to participate in the arrange- ment or to not participate in the ar- rangement. (D) Matching or nonelective contributions (i) In general The requirements of this subparagraph are met if, under the arrangement, the em- ployer— (I) makes matching contributions on behalf of each employee who is not a highly compensated employee in an amount equal to the sum of 100 percent of the elective contributions of the em- ployee to the extent that such contribu- tions do not exceed 1 percent of com- pensation plus 50 percent of so much of such contributions as exceed 1 percent but do not exceed 6 percent of compensa- tion, or (II) is required, without regard to whether the employee makes an elective contribution or employee contribution, to make a contribution to a defined con- tribution plan on behalf of each em- ployee who is not a highly compensated employee and who is eligible to partici- pate in the arrangement in an amount equal to at least 3 percent of the employ- ee’s compensation. (ii) Application of rules for matching con- tributions The rules of clauses (ii) and (iii) of para- graph (12)(B) shall apply for purposes of clause (i)(I). (iii) Withdrawal and vesting restrictions An arrangement shall not be treated as meeting the requirements of clause (i) un- less, with respect to employer contribu- tions (including matching contributions) taken into account in determining wheth- er the requirements of clause (i) are met— (I) any employee who has completed at least 2 years of service (within the mean- ing of section 411(a)) has a nonforfeitable right to 100 percent of the employee’s ac- crued benefit derived from such em- ployer contributions, and (II) the requirements of subparagraph (B) of paragraph (2) are met with respect to all such employer contributions. (iv) Application of certain other rules The rules of subparagraphs (E)(ii) and (G) of paragraph (12) shall apply for pur- poses of subclauses (I) and (II) of clause (i). (E) Notice requirements (i) In general The requirements of this subparagraph are met if, within a reasonable period be- fore each plan year, each employee eligible to participate in the arrangement for such year receives written notice of the employ- ee’s rights and obligations under the ar- rangement which— (I) is sufficiently accurate and com- prehensive to apprise the employee of such rights and obligations, and (II) is written in a manner calculated to be understood by the average em- ployee to whom the arrangement ap- plies. (ii) Timing and content requirements A notice shall not be treated as meeting the requirements of clause (i) with respect to an employee unless— (I) the notice explains the employee’s right under the arrangement to elect not to have elective contributions made on the employee’s behalf (or to elect to have such contributions made at a dif- ferent percentage), (II) in the case of an arrangement under which the employee may elect among 2 or more investment options, the notice explains how contributions made under the arrangement will be invested in the absence of any investment elec- tion by the employee, and (III) the employee has a reasonable pe- riod of time after receipt of the notice described in subclauses (I) and (II) and before the first elective contribution is made to make either such election. (F) Timing of plan amendment for employer making nonelective contributions (i) In general Except as provided in clause (ii), a plan may be amended after the beginning of a plan year to provide that the requirements of subparagraph (D)(i)(II) shall apply to the arrangement for the plan year, but only if the amendment is adopted— (I) at any time before the 30th day be- fore the close of the plan year, or (II) at any time before the last day under paragraph (8)(A) for distributing excess contributions for the plan year. (ii) Exception where plan provided for matching contributions Clause (i) shall not apply to any plan year if the plan provided at any time dur- Page 1199 TITLE 26—INTERNAL REVENUE CODE § 401 ing the plan year that the requirements of subparagraph (D)(i)(I) or paragraph (12)(B) applied to the plan year. (iii) 4-percent contribution requirement Clause (i)(II) shall not apply to an ar- rangement unless the amount of the con- tributions described in subparagraph (D)(i)(II) which the employer is required to make under the arrangement for the plan year with respect to any employee is an amount equal to at least 4 percent of the employee’s compensation. (14) Special rules relating to hardship with- drawals For purposes of paragraph (2)(B)(i)(IV)— (A) Amounts which may be withdrawn The following amounts may be distributed upon hardship of the employee: (i) Contributions to a profit-sharing or stock bonus plan to which section 402(e)(3) applies. (ii) Qualified nonelective contributions (as defined in subsection (m)(4)(C)). (iii) Qualified matching contributions described in paragraph (3)(D)(ii)(I). (iv) Earnings on any contributions de- scribed in clause (i), (ii), or (iii). (B) No requirement to take available loan A distribution shall not be treated as fail- ing to be made upon the hardship of an em- ployee solely because the employee does not take any available loan under the plan. (C) Employee certification In determining whether a distribution is upon the hardship of an employee, the ad- ministrator of the plan may rely on a writ- ten certification by the employee that the distribution is— (i) on account of a financial need of a type which is deemed in regulations pre- scribed by the Secretary to be an imme- diate and heavy financial need, and (ii) not in excess of the amount required to satisfy such financial need, and that the employee has no alternative means reasonably available to satisfy such finan- cial need. The Secretary may provide by reg- ulations for exceptions to the rule of the preceding sentence in cases where the plan administrator has actual knowledge to the contrary of the employee’s certification, and for procedures for addressing cases of em- ployee misrepresentation. (15) Special rules for participation require- ment for long-term, part-time workers For purposes of paragraph (2)(D)(ii)— (A) Age requirement must be met Paragraph (2)(D)(ii) shall not apply to an employee unless the employee has met the requirement of section 410(a)(1)(A)(i) by the close of the last of the 12-month periods de- scribed in such paragraph. (B) Nondiscrimination and top-heavy rules not to apply (i) Nondiscrimination rules In the case of employees who are eligible to participate in the arrangement solely by reason of paragraph (2)(D)(ii), or by rea- son of such paragraph and section 202(c)(1)(B) of the Employee Retirement Income Security Act of 1974— (I) notwithstanding subsection (a)(4), an employer shall not be required to make nonelective or matching contribu- tions on behalf of such employees even if such contributions are made on behalf of other employees eligible to participate in the arrangement, and (II) an employer may elect to exclude such employees from the application of subsection (a)(4), paragraphs (3), (12), and (13), paragraphs (2), (11), and (12) of sub- section (m), and section 410(b). (ii) Top-heavy rules An employer may elect to exclude all employees who are eligible to participate in a plan maintained by the employer sole- ly by reason of paragraph (2)(D)(ii) from the application of the vesting and benefit requirements under subsections (b) and (c) of section 416. (iii) Vesting For purposes of determining whether an employee described in clause (i) has a non- forfeitable right to employer contributions (other than contributions described in paragraph (3)(D)(i)) under the plan, each 12-month period for which the employee has at least 500 hours of service shall be treated as a year of service, and section 411(a)(6) shall be applied by substituting ‘‘at least 500 hours of service’’ for ‘‘more than 500 hours of service’’ in subparagraph (A) thereof. (iv) Employees who become full-time em- ployees This subparagraph (other than clause (iii)) shall cease to apply to any employee as of the first plan year beginning after the plan year in which the employee meets the requirements of paragraph (2)(D) with- out regard to paragraph (2)(D)(ii). (C) Exception for employees under collec- tively bargained plans, etc. Paragraph (2)(D)(ii) shall not apply to em- ployees described in section 410(b)(3). (D) Special rules (i) Time of participation The rules of section 410(a)(4) shall apply to an employee eligible to participate in an arrangement solely by reason of para- graph (2)(D)(ii). (ii) 12-month periods 12-month periods shall be determined in the same manner as under the last sen- tence of section 410(a)(3)(A). (16) Starter 401(k) deferral-only plans for em- ployers with no retirement plan (A) In general A starter 401(k) deferral-only arrangement maintained by an eligible employer shall be treated as meeting the requirements of para- graph (3)(A)(ii). Page 1200 TITLE 26—INTERNAL REVENUE CODE § 401 (B) Starter 401(k) deferral-only arrangement For purposes of this paragraph, the term ‘‘starter 401(k) deferral-only arrangement’’ means any cash or deferred arrangement which meets— (i) the automatic deferral requirements of subparagraph (C), (ii) the contribution limitations of sub- paragraph (D), and (iii) the requirements of subparagraph (E) of paragraph (13). (C) Automatic deferral (i) In general The requirements of this subparagraph are met if, under the arrangement, each el- igible employee is treated as having elect- ed to have the employer make elective contributions in an amount equal to a qualified percentage of compensation. (ii) Election out The election treated as having been made under clause (i) shall cease to apply with respect to any employee if such em- ployee makes an affirmative election— (I) to not have such contributions made, or (II) to make elective contributions at a level specified in such affirmative elec- tion. (iii) Qualified percentage For purposes of this subparagraph, the term ‘‘qualified percentage’’ means, with respect to any employee, any percentage determined under the arrangement if such percentage is applied uniformly and is not less than 3 or more than 15 percent. (D) Contribution limitations (i) In general The requirements of this subparagraph are met if, under the arrangement— (I) the only contributions which may be made are elective contributions of employees described in subparagraph (C), and (II) the aggregate amount of such elec- tive contributions which may be made with respect to any employee for any calendar year shall not exceed $6,000. (ii) Cost-of-living adjustment In the case of any calendar year begin- ning after December 31, 2024, the $6,000 amount under clause (i) shall be adjusted in the same manner as under section 402(g)(4), except that ‘‘2023’’ shall be sub- stituted for ‘‘2005’’. (iii) Catch-up contributions for individuals age 50 or over In the case of an individual who has at- tained the age of 50 before the close of the taxable year, the limitation under clause (i)(II) shall be increased by the applicable amount determined under section 219(b)(5)(B)(ii) (after the application of sec- tion 219(b)(5)(C)(iii)). (E) Eligible employer For purposes of this paragraph— (i) In general The term ‘‘eligible employer’’ means any employer if the employer does not main- tain a qualified plan with respect to which contributions are made, or benefits are ac- crued, for service in the year for which the determination is being made. If only indi- viduals other than employees described in subparagraph (A) of section 410(b)(3) are el- igible to participate in such arrangement, then the preceding sentence shall be ap- plied without regard to any qualified plan in which only employees described in such subparagraph are eligible to participate. (ii) Relief for acquisitions, etc. Rules similar to the rules of section 408(p)(10) shall apply for purposes of clause (i). (iii) Qualified plan The term ‘‘qualified plan’’ means a plan, contract, pension, account, or trust de- scribed in subparagraph (A) or (B) of para- graph (5) of section 219(g) (determined without regard to the last sentence of such paragraph (5)). (F) Eligible employee For purposes of this paragraph— (i) In general The term ‘‘eligible employee’’ means any employee of the employer who meets the minimum age and service conditions de- scribed in section 410(a)(1). (ii) Exclusions The employer may elect to exclude from such definition any employee described in paragraph (3) or (4) of section 410(b). (l) Permitted disparity in plan contributions or benefits (1) In general The requirements of this subsection are met with respect to a plan if— (A) in the case of a defined contribution plan, the requirements of paragraph (2) are met, and (B) in the case of a defined benefit plan, the requirements of paragraph (3) are met. (2) Defined contribution plan (A) In general A defined contribution plan meets the re- quirements of this paragraph if the excess contribution percentage does not exceed the base contribution percentage by more than the lesser of— (i) the base contribution percentage, or (ii) the greater of— (I) 5.7 percentage points, or (II) the percentage equal to the portion of the rate of tax under section 3111(a) (in effect as of the beginning of the year) which is attributable to old-age insur- ance. (B) Contribution percentages For purposes of this paragraph— (i) Excess contribution percentage The term ‘‘excess contribution percent- age’’ means the percentage of compensa- Page 1201 TITLE 26—INTERNAL REVENUE CODE § 401 tion which is contributed by the employer under the plan with respect to that portion of each participant’s compensation in ex- cess of the integration level. (ii) Base contribution percentage The term ‘‘base contribution percent- age’’ means the percentage of compensa- tion contributed by the employer under the plan with respect to that portion of each participant’s compensation not in ex- cess of the integration level. (3) Defined benefit plan A defined benefit plan meets the require- ments of this paragraph if— (A) Excess plans (i) In general In the case of a plan other than an offset plan— (I) the excess benefit percentage does not exceed the base benefit percentage by more than the maximum excess al- lowance, (II) any optional form of benefit, pre- retirement benefit, actuarial factor, or other benefit or feature provided with re- spect to compensation in excess of the integration level is provided with respect to compensation not in excess of such level, and (III) benefits are based on average an- nual compensation. (ii) Benefit percentages For purposes of this subparagraph, the excess and base benefit percentages shall be computed in the same manner as the excess and base contribution percentages under paragraph (2)(B), except that such determination shall be made on the basis of benefits attributable to employer con- tributions rather than contributions. (B) Offset plans In the case of an offset plan, the plan pro- vides that— (i) a participant’s accrued benefit attrib- utable to employer contributions (within the meaning of section 411(c)(1)) may not be reduced (by reason of the offset) by more than the maximum offset allowance, and (ii) benefits are based on average annual compensation. (4) Definitions relating to paragraph (3) For purposes of paragraph (3)— (A) Maximum excess allowance The maximum excess allowance is equal to— (i) in the case of benefits attributable to any year of service with the employer taken into account under the plan, 3⁄4 of a percentage point, and (ii) in the case of total benefits, 3⁄4 of a percentage point, multiplied by the par- ticipant’s years of service (not in excess of 35) with the employer taken into account under the plan. In no event shall the maximum excess allow- ance exceed the base benefit percentage. (B) Maximum offset allowance The maximum offset allowance is equal to— (i) in the case of benefits attributable to any year of service with the employer taken into account under the plan, 3⁄4 per- cent of the participant’s final average compensation, and (ii) in the case of total benefits, 3⁄4 per- cent of the participant’s final average compensation, multiplied by the partici- pant’s years of service (not in excess of 35) with the employer taken into account under the plan. In no event shall the maximum offset allow- ance exceed 50 percent of the benefit which would have accrued without regard to the offset reduction. (C) Reductions (i) In general The Secretary shall prescribe regula- tions requiring the reduction of the 3⁄4 per- centage factor under subparagraph (A) or (B)— (I) in the case of a plan other than an offset plan which has an integration level in excess of covered compensation, or (II) with respect to any participant in an offset plan who has final average compensation in excess of covered com- pensation. (ii) Basis of reductions Any reductions under clause (i) shall be based on the percentages of compensation replaced by the employer-derived portions of primary insurance amounts under the Social Security Act for participants with compensation in excess of covered com- pensation. (D) Offset plan The term ‘‘offset plan’’ means any plan with respect to which the benefit attrib- utable to employer contributions for each participant is reduced by an amount speci- fied in the plan. (5) Other definitions and special rules For purposes of this subsection— (A) Integration level (i) In general The term ‘‘integration level’’ means the amount of compensation specified under the plan (by dollar amount or formula) at or below which the rate at which contribu- tions or benefits are provided (expressed as a percentage) is less than such rate above such amount. (ii) Limitation The integration level for any year may not exceed the contribution and benefit base in effect under section 230 of the So- cial Security Act for such year. (iii) Level to apply to all participants A plan’s integration level shall apply with respect to all participants in the plan. Page 1202 TITLE 26—INTERNAL REVENUE CODE § 401 (iv) Multiple integration levels Under rules prescribed by the Secretary, a defined benefit plan may specify mul- tiple integration levels. (B) Compensation The term ‘‘compensation’’ has the mean- ing given such term by section 414(s). (C) Average annual compensation The term ‘‘average annual compensation’’ means the participant’s highest average an- nual compensation for— (i) any period of at least 3 consecutive years, or (ii) if shorter, the participant’s full pe- riod of service. (D) Final average compensation (i) In general The term ‘‘final average compensation’’ means the participant’s average annual compensation for— (I) the 3-consecutive year period end- ing with the current year, or (II) if shorter, the participant’s full pe- riod of service. (ii) Limitation A participant’s final average compensa- tion shall be determined by not taking into account in any year compensation in excess of the contribution and benefit base in effect under section 230 of the Social Se- curity Act for such year. (E) Covered compensation (i) In general The term ‘‘covered compensation’’ means, with respect to an employee, the average of the contribution and benefit bases in effect under section 230 of the So- cial Security Act for each year in the 35- year period ending with the year in which the employee attains the social security retirement age. (ii) Computation for any year For purposes of clause (i), the determina- tion for any year preceding the year in which the employee attains the social se- curity retirement age shall be made by as- suming that there is no increase in the bases described in clause (i) after the de- termination year and before the employee attains the social security retirement age. (iii) Social security retirement age For purposes of this subparagraph, the term ‘‘social security retirement age’’ has the meaning given such term by section 415(b)(8). (F) Regulations The Secretary shall prescribe such regula- tions as are necessary or appropriate to carry out the purposes of this subsection, in- cluding— (i) in the case of a defined benefit plan which provides for unreduced benefits commencing before the social security re- tirement age (as defined in section 415(b)(8)), rules providing for the reduction of the maximum excess allowance and the maximum offset allowance, and (ii) in the case of an employee covered by 2 or more plans of the employer which fail to meet the requirements of subsection (a)(4) (without regard to this subsection), rules preventing the multiple use of the disparity permitted under this subsection with respect to any employee. For purposes of clause (i), unreduced bene- fits shall not include benefits for disability (within the meaning of section 223(d) of the Social Security Act). (6) Special rule for plan maintained by rail- roads In determining whether a plan which in- cludes employees of a railroad employer who are entitled to benefits under the Railroad Re- tirement Act of 1974 meets the requirements of this subsection, rules similar to the rules set forth in this subsection shall apply. Such rules shall take into account the employer-derived portion of the employees’ tier 2 railroad re- tirement benefits and any supplemental annu- ity under the Railroad Retirement Act of 1974. (m) Nondiscrimination test for matching con- tributions and employee contributions (1) In general A defined contribution plan shall be treated as meeting the requirements of subsection (a)(4) with respect to the amount of any matching contribution or employee contribu- tion for any plan year only if the contribution percentage requirement of paragraph (2) of this subsection is met for such plan year. (2) Requirements (A) Contribution percentage requirement A plan meets the contribution percentage requirement of this paragraph for any plan year only if the contribution percentage for eligible highly compensated employees for such plan year does not exceed the greater of— (i) 125 percent of such percentage for all other eligible employees for the preceding plan year, or (ii) the lesser of 200 percent of such per- centage for all other eligible employees for the preceding plan year, or such percent- age for all other eligible employees for the preceding plan year plus 2 percentage points. This subparagraph may be applied by using the plan year rather than the preceding plan year if the employer so elects, except that if such an election is made, it may not be changed except as provided by the Sec- retary. (B) Multiple plans treated as a single plan If two or more plans of an employer to which matching contributions, employee contributions, or elective deferrals are made are treated as one plan for purposes of sec- tion 410(b), such plans shall be treated as one plan for purposes of this subsection. If a highly compensated employee participates in two or more plans of an employer to Page 1203 TITLE 26—INTERNAL REVENUE CODE § 401 which contributions to which this subsection applies are made, all such contributions shall be aggregated for purposes of this sub- section. (3) Contribution percentage For purposes of paragraph (2), the contribu- tion percentage for a specified group of em- ployees for a plan year shall be the average of the ratios (calculated separately for each em- ployee in such group) of— (A) the sum of the matching contributions and employee contributions paid under the plan on behalf of each such employee for such plan year, to (B) the employee’s compensation (within the meaning of section 414(s)) for such plan year. Under regulations, an employer may elect to take into account (in computing the contribu- tion percentage) elective deferrals and quali- fied nonelective contributions under the plan or any other plan of the employer. If matching contributions are taken into account for pur- poses of subsection (k)(3)(A)(ii) for any plan year, such contributions shall not be taken into account under subparagraph (A) for such year. Rules similar to the rules of subsection (k)(3)(E) shall apply for purposes of this sub- section. (4) Definitions For purposes of this subsection— (A) Matching contribution The term ‘‘matching contribution’’ means— (i) any employer contribution made to a defined contribution plan on behalf of an employee on account of an employee con- tribution made by such employee, (ii) any employer contribution made to a defined contribution plan on behalf of an employee on account of an employee’s elective deferral, and (iii) subject to the requirements of para- graph (14), any employer contribution made to a defined contribution plan on be- half of an employee on account of a quali- fied student loan payment. (B) Elective deferral The term ‘‘elective deferral’’ means any employer contribution described in section 402(g)(3). (C) Qualified nonelective contributions The term ‘‘qualified nonelective contribu- tion’’ means any employer contribution (other than a matching contribution) with respect to which— (i) the employee may not elect to have the contribution paid to the employee in cash instead of being contributed to the plan, and (ii) the requirements of subparagraphs (B) and (C) of subsection (k)(2) are met. (D) Qualified student loan payment The term ‘‘qualified student loan pay- ment’’ means a payment made by an em- ployee in repayment of a qualified education loan (as defined in section 221(d)(1)) incurred by the employee to pay qualified higher edu- cation expenses, but only— (i) to the extent such payments in the aggregate for the year do not exceed an amount equal to— (I) the limitation applicable under sec- tion 402(g) for the year (or, if lesser, the employee’s compensation (as defined in section 415(c)(3)) for the year), reduced by (II) the elective deferrals made by the employee for such year, and (ii) if the employee certifies annually to the employer making the matching con- tribution under this paragraph that such payment has been made on such loan. For purposes of this subparagraph, the term ‘‘qualified higher education expenses’’ means the cost of attendance (as defined in section 472 of the Higher Education Act of 1965, as in effect on the day before the date of the en- actment of the Taxpayer Relief Act of 1997) at an eligible educational institution (as de- fined in section 221(d)(2)). (5) Employees taken into consideration (A) In general Any employee who is eligible to make an employee contribution (or, if the employer takes elective contributions into account, elective contributions) or to receive a matching contribution under the plan being tested under paragraph (1) shall be consid- ered an eligible employee for purposes of this subsection. (B) Certain nonparticipants If an employee contribution is required as a condition of participation in the plan, any employee who would be a participant in the plan if such employee made such a contribu- tion shall be treated as an eligible employee on behalf of whom no employer contribu- tions are made. (C) Special rule for early participation If an employer elects to apply section 410(b)(4)(B) in determining whether a plan meets the requirements of section 410(b), the employer may, in determining whether the plan meets the requirements of paragraph (2), exclude from consideration all eligible employees (other than highly compensated employees) who have not met the minimum age and service requirements of section 410(a)(1)(A). (6) Plan not disqualified if excess aggregate contributions distributed before end of fol- lowing plan year (A) In general A plan shall not be treated as failing to meet the requirements of paragraph (1) for any plan year if, before the close of the fol- lowing plan year, the amount of the excess aggregate contributions for such plan year (and any income allocable to such contribu- tions through the end of such year) is dis- tributed (or, if forfeitable, is forfeited). Such contributions (and such income) may be dis- tributed without regard to any other provi- sion of law. Page 1204 TITLE 26—INTERNAL REVENUE CODE § 401 (B) Excess aggregate contributions For purposes of subparagraph (A), the term ‘‘excess aggregate contributions’’ means, with respect to any plan year, the excess of— (i) the aggregate amount of the match- ing contributions and employee contribu- tions (and any qualified nonelective con- tribution or elective contribution taken into account in computing the contribu- tion percentage) actually made on behalf of highly compensated employees for such plan year, over (ii) the maximum amount of such con- tributions permitted under the limitations of paragraph (2)(A) (determined by reduc- ing contributions made on behalf of highly compensated employees in order of their contribution percentages beginning with the highest of such percentages). (C) Method of distributing excess aggregate contributions Any distribution of the excess aggregate contributions for any plan year shall be made to highly compensated employees on the basis of the amount of contributions on behalf of, or by, each such employee. For- feitures of excess aggregate contributions may not be allocated to participants whose contributions are reduced under this para- graph. (D) Coordination with subsection (k) and 402(g) The determination of the amount of excess aggregate contributions with respect to a plan shall be made after— (i) first determining the excess deferrals (within the meaning of section 402(g)), and (ii) then determining the excess con- tributions under subsection (k). (7) Treatment of distributions (A) Additional tax of section 72(t) not appli- cable No tax shall be imposed under section 72(t) on any amount required to be distributed under paragraph (6). (B) Exclusion of employee contributions Any distribution attributable to employee contributions shall not be included in gross income except to the extent attributable to income on such contributions. (8) Highly compensated employee For purposes of this subsection, the term ‘‘highly compensated employee’’ has the meaning given to such term by section 414(q). (9) Regulations The Secretary shall prescribe such regula- tions as may be necessary to carry out the purposes of this subsection and subsection (k), including regulations permitting appropriate aggregation of plans and contributions. (10) Alternative method of satisfying tests A defined contribution plan shall be treated as meeting the requirements of paragraph (2) with respect to matching contributions if the plan— (A) meets the contribution requirements of subparagraph (B) of subsection (k)(11), (B) meets the exclusive plan requirements of subsection (k)(11)(C), and (C) meets the vesting requirements of sec- tion 408(p)(3). (11) Additional alternative method of satisfying tests (A) In general A defined contribution plan shall be treat- ed as meeting the requirements of paragraph (2) with respect to matching contributions if the plan— (i) meets the contribution requirements of subparagraph (B) or (C) of subsection (k)(12), (ii) meets the notice requirements of subsection (k)(12)(D), and (iii) meets the requirements of subpara- graph (B). (B) Limitation on matching contributions The requirements of this subparagraph are met if— (i) matching contributions on behalf of any employee may not be made with re- spect to an employee’s contributions or elective deferrals in excess of 6 percent of the employee’s compensation, (ii) the rate of an employer’s matching contribution does not increase as the rate of an employee’s contributions or elective deferrals increase, and (iii) the matching contribution with re- spect to any highly compensated employee at any rate of an employee contribution or rate of elective deferral is not greater than that with respect to an employee who is not a highly compensated employee. (12) Alternative method for automatic con- tribution arrangements A defined contribution plan shall be treated as meeting the requirements of paragraph (2) with respect to matching contributions if the plan— (A) is a qualified automatic contribution arrangement (as defined in subsection (k)(13)), (B) meets the notice requirements of sub- section (k)(13)(E), and (C) meets the requirements of paragraph (11)(B). (13) Matching contributions for qualified stu- dent loan payments (A) In general For purposes of paragraph (4)(A)(iii), an employer contribution made to a defined contribution plan on account of a qualified student loan payment shall be treated as a matching contribution for purposes of this title if— (i) the plan provides matching contribu- tions on account of elective deferrals at the same rate as contributions on account of qualified student loan payments, (ii) the plan provides matching contribu- tions on account of qualified student loan payments only on behalf of employees oth- erwise eligible to receive matching con- tributions on account of elective deferrals, Page 1205 TITLE 26—INTERNAL REVENUE CODE § 401 (iii) under the plan, all employees eligi- ble to receive matching contributions on account of elective deferrals are eligible to receive matching contributions on account of qualified student loan payments, and (iv) the plan provides that matching con- tributions on account of qualified student loan payments vest in the same manner as matching contributions on account of elec- tive deferrals. (B) Treatment for purposes of nondiscrimina- tion rules, etc. (i) Nondiscrimination rules For purposes of subparagraph (A)(iii), subsection (a)(4), and section 410(b), matching contributions described in para- graph (4)(A)(iii) shall not fail to be treated as available to an employee solely because such employee does not have debt incurred under a qualified education loan (as de- fined in section 221(d)(1)). (ii) Student loan payments not treated as plan contribution.— Except as provided in clause (iii), a qualified student loan payment shall not be treated as a contribution to a plan under this title. (iii) Matching contribution rules Solely for purposes of meeting the re- quirements of paragraph (11)(B), (12), or (13) of this subsection, or paragraph (11)(B)(i)(II), (12)(B), (13)(D), or (16)(D) of subsection (k), a plan may treat a quali- fied student loan payment as an elective deferral or an elective contribution, whichever is applicable. (iv) Actual deferral percentage testing In determining whether a plan meets the requirements of subsection (k)(3)(A)(ii) for a plan year, the plan may apply the re- quirements of such subsection separately with respect to all employees who receive matching contributions described in para- graph (4)(A)(iii) for the plan year. (C) Employer may rely on employee certifi- cation The employer may rely on an employee certification of payment under paragraph (4)(D)(ii). (14) Cross reference For excise tax on certain excess contributions, see section 4979. (n) Coordination with qualified domestic rela- tions orders The Secretary shall prescribe such rules or regulations as may be necessary to coordinate the requirements of subsection (a)(13)(B) and section 414(p) (and the regulations issued by the Secretary of Labor thereunder) with the other provisions of this chapter. (o) Special rules for applying nondiscrimination rules to protect older, longer service and grandfathered participants (1) Testing of defined benefit plans with closed classes of participants (A) Benefits, rights, or features provided to closed classes A defined benefit plan which provides ben- efits, rights, or features to a closed class of participants shall not fail to satisfy the re- quirements of subsection (a)(4) by reason of the composition of such closed class or the benefits, rights, or features provided to such closed class, if— (i) for the plan year as of which the class closes and the 2 succeeding plan years, such benefits, rights, and features satisfy the requirements of subsection (a)(4) (without regard to this subparagraph but taking into account the rules of subpara- graph (I)), (ii) after the date as of which the class was closed, any plan amendment which modifies the closed class or the benefits, rights, and features provided to such closed class does not discriminate signifi- cantly in favor of highly compensated em- ployees, and (iii) the class was closed before April 5, 2017, or the plan is described in subpara- graph (C). (B) Aggregate testing with defined contribu- tion plans permitted on a benefits basis (i) In general For purposes of determining compliance with subsection (a)(4) and section 410(b), a defined benefit plan described in clause (iii) may be aggregated and tested on a benefits basis with 1 or more defined con- tribution plans, including with the portion of 1 or more defined contribution plans which— (I) provides matching contributions (as defined in subsection (m)(4)(A)), (II) provides annuity contracts de- scribed in section 403(b) which are pur- chased with matching contributions or nonelective contributions, or (III) consists of an employee stock ownership plan (within the meaning of section 4975(e)(7)) or a tax credit em- ployee stock ownership plan (within the meaning of section 409(a)). (ii) Special rules for matching contribu- tions For purposes of clause (i), if a defined benefit plan is aggregated with a portion of a defined contribution plan providing matching contributions— (I) such defined benefit plan must also be aggregated with any portion of such defined contribution plan which provides elective deferrals described in subpara- graph (A) or (C) of section 402(g)(3), and (II) such matching contributions shall be treated in the same manner as non- elective contributions, including for pur- poses of applying the rules of subsection (l). Page 1206 TITLE 26—INTERNAL REVENUE CODE § 401 (iii) Plans described A defined benefit plan is described in this clause if— (I) the plan provides benefits to a closed class of participants, (II) for the plan year as of which the class closes and the 2 succeeding plan years, the plan satisfies the require- ments of section 410(b) and subsection (a)(4) (without regard to this subpara- graph but taking into account the rules of subparagraph (I)), (III) after the date as of which the class was closed, any plan amendment which modifies the closed class or the benefits provided to such closed class does not discriminate significantly in favor of highly compensated employees, and (IV) the class was closed before April 5, 2017, or the plan is described in subpara- graph (C). (C) Plans described A plan is described in this subparagraph if, taking into account any predecessor plan— (i) such plan has been in effect for at least 5 years as of the date the class is closed, and (ii) during the 5-year period preceding the date the class is closed, there has not been a substantial increase in the coverage or value of the benefits, rights, or features described in subparagraph (A) or in the coverage or benefits under the plan de- scribed in subparagraph (B)(iii) (whichever is applicable). (D) Determination of substantial increase for benefits, rights, and features In applying subparagraph (C)(ii) for pur- poses of subparagraph (A)(iii), a plan shall be treated as having had a substantial increase in coverage or value of the benefits, rights, or features described in subparagraph (A) during the applicable 5-year period only if, during such period— (i) the number of participants covered by such benefits, rights, or features on the date such period ends is more than 50 per- cent greater than the number of such par- ticipants on the first day of the plan year in which such period began, or (ii) such benefits, rights, and features have been modified by 1 or more plan amendments in such a way that, as of the date the class is closed, the value of such benefits, rights, and features to the closed class as a whole is substantially greater than the value as of the first day of such 5-year period, solely as a result of such amendments. (E) Determination of substantial increase for aggregate testing on benefits basis In applying subparagraph (C)(ii) for pur- poses of subparagraph (B)(iii)(IV), a plan shall be treated as having had a substantial increase in coverage or benefits during the applicable 5-year period only if, during such period— (i) the number of participants benefit- ting under the plan on the date such period ends is more than 50 percent greater than the number of such participants on the first day of the plan year in which such pe- riod began, or (ii) the average benefit provided to such participants on the date such period ends is more than 50 percent greater than the average benefit provided on the first day of the plan year in which such period began. (F) Certain employees disregarded For purposes of subparagraphs (D) and (E), any increase in coverage or value or in cov- erage or benefits, whichever is applicable, which is attributable to such coverage and value or coverage and benefits provided to employees— (i) who became participants as a result of a merger, acquisition, or similar event which occurred during the 7-year period preceding the date the class is closed, or (ii) who became participants by reason of a merger of the plan with another plan which had been in effect for at least 5 years as of the date of the merger, shall be disregarded, except that clause (ii) shall apply for purposes of subparagraph (D) only if, under the merger, the benefits, rights, or features under 1 plan are con- formed to the benefits, rights, or features of the other plan prospectively. (G) Rules relating to average benefit For purposes of subparagraph (E)— (i) the average benefit provided to par- ticipants under the plan will be treated as having remained the same between the 2 dates described in subparagraph (E)(ii) if the benefit formula applicable to such par- ticipants has not changed between such dates, and (ii) if the benefit formula applicable to 1 or more participants under the plan has changed between such 2 dates, then the av- erage benefit under the plan shall be con- sidered to have increased by more than 50 percent only if— (I) the total amount determined under section 430(b)(1)(A)(i) for all participants benefitting under the plan for the plan year in which the 5-year period described in subparagraph (E) ends, exceeds (II) the total amount determined under section 430(b)(1)(A)(i) for all such partici- pants for such plan year, by using the benefit formula in effect for each such participant for the first plan year in such 5-year period, by more than 50 percent. In the case of a CSEC plan (as defined in section 414(y)), the normal cost of the plan (as determined under section 433(j)(1)(B)) shall be used in lieu of the amount determined under sec- tion 430(b)(1)(A)(i). (H) Treatment as single plan For purposes of subparagraphs (E) and (G), a plan described in section 413(c) shall be treated as a single plan rather than as sepa- rate plans maintained by each employer in the plan. Page 1207 TITLE 26—INTERNAL REVENUE CODE § 401 (I) Special rules For purposes of subparagraphs (A)(i) and (B)(iii)(II), the following rules shall apply: (i) In applying section 410(b)(6)(C), the closing of the class of participants shall not be treated as a significant change in coverage under section 410(b)(6)(C)(i)(II). (ii) 2 or more plans shall not fail to be el- igible to be aggregated and treated as a single plan solely by reason of having dif- ferent plan years. (iii) Changes in the employee population shall be disregarded to the extent attrib- utable to individuals who become employ- ees or cease to be employees, after the date the class is closed, by reason of a merger, acquisition, divestiture, or similar event. (iv) Aggregation and all other testing methodologies otherwise applicable under subsection (a)(4) and section 410(b) may be taken into account. The rule of clause (ii) shall also apply for purposes of determining whether plans to which subparagraph (B)(i) applies may be ag- gregated and treated as 1 plan for purposes of determining whether such plans meet the requirements of subsection (a)(4) and section 410(b). (J) Spun-off plans For purposes of this paragraph, if a portion of a defined benefit plan described in sub- paragraph (A) or (B)(iii) is spun off to an- other employer and the spun-off plan con- tinues to satisfy the requirements of— (i) subparagraph (A)(i) or (B)(iii)(II), whichever is applicable, if the original plan was still within the 3-year period de- scribed in such subparagraph at the time of the spin off, and (ii) subparagraph (A)(ii) or (B)(iii)(III), whichever is applicable, the treatment under subparagraph (A) or (B) of the spun-off plan shall continue with re- spect to such other employer. (2) Testing of defined contribution plans (A) Testing on a benefits basis A defined contribution plan shall be per- mitted to be tested on a benefits basis if— (i) such defined contribution plan pro- vides make-whole contributions to a closed class of participants whose accruals under a defined benefit plan have been re- duced or eliminated, (ii) for the plan year of the defined con- tribution plan as of which the class eligi- ble to receive such make-whole contribu- tions closes and the 2 succeeding plan years, such closed class of participants sat- isfies the requirements of section 410(b)(2)(A)(i) (determined by applying the rules of paragraph (1)(I)), (iii) after the date as of which the class was closed, any plan amendment to the de- fined contribution plan which modifies the closed class or the allocations, benefits, rights, and features provided to such closed class does not discriminate signifi- cantly in favor of highly compensated em- ployees, and (iv) the class was closed before April 5, 2017, or the defined benefit plan under clause (i) is described in paragraph (1)(C) (as applied for purposes of paragraph (1)(B)(iii)(IV)). (B) Aggregation with plans including match- ing contributions (i) In general With respect to 1 or more defined con- tribution plans described in subparagraph (A), for purposes of determining compli- ance with subsection (a)(4) and section 410(b), the portion of such plans which pro- vides make-whole contributions or other nonelective contributions may be aggre- gated and tested on a benefits basis with the portion of 1 or more other defined con- tribution plans which— (I) provides matching contributions (as defined in subsection (m)(4)(A)), (II) provides annuity contracts de- scribed in section 403(b) which are pur- chased with matching contributions or nonelective contributions, or (III) consists of an employee stock ownership plan (within the meaning of section 4975(e)(7)) or a tax credit em- ployee stock ownership plan (within the meaning of section 409(a)). (ii) Special rules for matching contribu- tions Rules similar to the rules of paragraph (1)(B)(ii) shall apply for purposes of clause (i). (C) Special rules for testing defined contribu- tion plan features providing matching contributions to certain older, longer service participants In the case of a defined contribution plan which provides benefits, rights, or features to a closed class of participants whose accru- als under a defined benefit plan have been reduced or eliminated, the plan shall not fail to satisfy the requirements of subsection (a)(4) solely by reason of the composition of the closed class or the benefits, rights, or features provided to such closed class if the defined contribution plan and defined benefit plan otherwise meet the requirements of subparagraph (A) but for the fact that the make-whole contributions under the defined contribution plan are made in whole or in part through matching contributions. (D) Spun-off plans For purposes of this paragraph, if a portion of a defined contribution plan described in subparagraph (A) or (C) is spun off to an- other employer, the treatment under sub- paragraph (A) or (C) of the spun-off plan shall continue with respect to the other em- ployer if such plan continues to comply with the requirements of clauses (ii) (if the origi- nal plan was still within the 3-year period described in such clause at the time of the spin off) and (iii) of subparagraph (A), as de- termined for purposes of subparagraph (A) or (C), whichever is applicable. Page 1208 TITLE 26—INTERNAL REVENUE CODE § 401 (3) Definitions and special rule For purposes of this subsection— (A) Make-whole contributions Except as otherwise provided in paragraph (2)(C), the term ‘‘make-whole contributions’’ means nonelective allocations for each em- ployee in the class which are reasonably cal- culated, in a consistent manner, to replace some or all of the retirement benefits which the employee would have received under the defined benefit plan and any other plan or qualified cash or deferred arrangement under subsection (k)(2) if no change had been made to such defined benefit plan and such other plan or arrangement. For purposes of the preceding sentence, consistency shall not be required with respect to employees who were subject to different benefit for- mulas under the defined benefit plan. (B) References to closed class of participants References to a closed class of participants and similar references to a closed class shall include arrangements under which 1 or more classes of participants are closed, except that 1 or more classes of participants closed on different dates shall not be aggregated for purposes of determining the date any such class was closed. (C) Highly compensated employee The term ‘‘highly compensated employee’’ has the meaning given such term in section 414(q). (p) Cross reference For exemption from tax of a trust qualified under this section, see section 501(a). (Aug. 16, 1954, ch. 736, 68A Stat. 134; Pub. L. 87–792, § 2, Oct. 10, 1962, 76 Stat. 809; Pub. L. 87–863, § 2(a), Oct. 23, 1962, 76 Stat. 1141; Pub. L. 88–272, title II, § 219(a), Feb. 26, 1964, 78 Stat. 57; Pub. L. 89–97, title I, § 106(d)(4), July 30, 1965, 79 Stat. 337; Pub. L. 89–809, title II, §§ 204(b)(1), (c), 205(a), Nov. 13, 1966, 80 Stat. 1577, 1578; Pub. L. 91–691, § 1(a), Jan. 12, 1971, 84 Stat. 2074; Pub. L. 93–406, title II, §§ 1012(b), 1016(a)(2), 1021, 1022(a)–(d), (f), 1023, 2001(c)–(e)(4), (h)(1), 2004(a)(1), Sept. 2, 1974, 88 Stat. 913, 929, 935, 938–940, 943, 952–955, 957, 979; Pub. L. 94–267, § 1(c)(1), (2), Apr. 15, 1976, 90 Stat. 367; Pub. L. 94–455, title VIII, § 803(b)(2), title XV, § 1505(b), title XIX, §§ 1901(a)(56), 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1584, 1738, 1773, 1834; Pub. L. 95–600, title I, §§ 135(a), 141(f)(3), 143(a), 152(e), Nov. 6, 1978, 92 Stat. 2785, 2795, 2796, 2799; Pub. L. 96–222, title I, § 101(a)(7)(L)(i)(V), (9), (14)(E)(iii), Apr. 1, 1980, 94 Stat. 199, 201, 205; Pub. L. 96–364, title II, § 208(a), (e), title IV, § 410(b), Sept. 26, 1980, 94 Stat. 1289, 1290, 1308; Pub. L. 96–605, title II, §§ 221(a), 225(b)(1), (2), Dec. 28, 1980, 94 Stat. 3528, 3529; Pub. L. 97–34, title III, §§ 312(b)(1), (c)(2)–(4), (e)(2), 314(a)(1), 335, 338(a), Aug. 13, 1981, 95 Stat. 283–286, 297, 298; Pub. L. 97–248, title II, §§ 237(a), (b), (e)(1), 238(b), (d)(1), (2), 240(b), 242(a), 249(a), 254(a), Sept. 3, 1982, 96 Stat. 511–513, 520, 521, 527, 533; Pub. L. 97–448, title I, § 103(c)(10)(A), (d)(2), (g)(2)(A), title III, § 306(a)(12), Jan. 12, 1983, 96 Stat. 2377–2379, 2405; Pub. L. 98–21, title I, § 124(c)(4)(A), Apr. 20, 1983, 97 Stat. 91; Pub. L. 98–369, div. A, title II, § 211(b)(5), title IV, §§ 474(r)(13), 491(e)(4), (5), title V, §§ 521(a), 524(d)(1), 527(a), (b), 528(b), title VII, § 713(c)(2)(A), (d)(3), July 18, 1984, 98 Stat. 754, 842, 853, 865, 872, 875–877, 957, 958; Pub. L. 98–397, title II, §§ 203(a), 204(a), title III, § 301(b), Aug. 23, 1984, 98 Stat. 1440, 1445, 1451; Pub. L. 99–514, title XI, §§ 1106(d)(1), 1111(a), (b), 1112(b), (d)(1), 1114(b)(7), 1116(a)–(e), 1117(a), 1119(a), 1121(b), 1136(a), 1143(a), 1145(a), 1171(b)(5), 1174(c)(2)(A), 1175(a)(1), 1176(a), title XVIII, §§ 1848(b), 1852(a)(4)(A), (6), (b)(8), (g), (h)(1), 1879(g)(1), (2), 1898(b)(2)(A), (3)(A), (7)(A), (13)(A), (14)(A), (c)(3), 1899A(10), Oct. 22, 1986, 100 Stat. 2423, 2435, 2439, 2444, 2445, 2451, 2454–2456, 2459, 2463, 2465, 2485, 2490, 2513, 2518, 2519, 2857, 2865–2869, 2906, 2907, 2945, 2948, 2950, 2953, 2958; Pub. L. 100–203, title IX, § 9341(a), Dec. 22, 1987, 101 Stat. 1330–369; Pub. L. 100–647, title I, §§ 1011(c)(7)(A), (d)(4), (e)(3), (g)(1)–(3), (h)(3), (k)(1)(A), (B), s2)–(7), (9), (l)(1)–(5)(A), (6), (7), 1011A(j), (l), 1011B(j)(1), (2), (6), (k)(1), (2), title VI, §§ 6053(a), 6055(a), 6071(a), (b), Nov. 10, 1988, 102 Stat. 3458–3460, 3463, 3464, 3468–3470, 3483, 3492, 3493, 3696, 3697, 3705; Pub. L. 101–140, title II, § 203(a)(5), Nov. 8, 1989, 103 Stat. 830; Pub. L. 101–239, title VII, §§ 7311(a), 7811(g)(1), (h)(3), 7816(l), 7881(i)(1)(A), (4)(A), Dec. 19, 1989, 103 Stat. 2354, 2409, 2421, 2442; Pub. L. 101–508, title XII, § 12011(b), Nov. 5, 1990, 104 Stat. 1388–571; Pub. L. 102–318, title V, §§ 521(b)(5)–(8), 522(a)(1), July 3, 1992, 106 Stat. 310, 313; Pub. L. 103–66, title XIII, § 13212(a), Aug. 10, 1993, 107 Stat. 471; Pub. L. 103–465, title VII, §§ 732(a), 751(a)(9)(C), 766(b), 776(d), Dec. 8, 1994, 108 Stat. 5004, 5021, 5037, 5048; Pub. L. 104–188, title I, §§ 1401(b)(5), (6), 1404(a), 1422(a), (b), 1426(a), 1431(b)(2), (c)(1)(B), 1432(a), (b), 1433(a)–(e), 1441(a), 1443(a), (b), 1445(a), 1459(a), (b), 1704(a), (t)(67), Aug. 20, 1996, 110 Stat. 1789, 1791, 1800, 1801, 1803–1809, 1811, 1820, 1878, 1890; Pub. L. 105–34, title XV, §§ 1502(b), 1505(a)(1), (2), (b), 1525(a), 1530(c)(1), title XVI, § 1601(d)(2)(A), (B), (D), (3), Aug. 5, 1997, 111 Stat. 1059, 1063, 1072, 1078, 1088, 1089; Pub. L. 106–554, § 1(a)(7) [title III, § 316(c)], Dec. 21, 2000, 114 Stat. 2763, 2763A–644; Pub. L. 107–16, title VI, §§ 611(c), (f)(3), (g)(1), 641(e)(3), 643(b), 646(a)(1), 657(a), 666(a), June 7, 2001, 115 Stat. 97, 99, 120, 122, 126, 135, 143; Pub. L. 107–147, title IV, § 411(o)(2), (q)(1), Mar. 9, 2002, 116 Stat. 48, 51; Pub. L. 108–311, title IV, § 407(b), Oct. 4, 2004, 118 Stat. 1190; Pub. L. 109–280, title I, § 114(a), title VIII, §§ 827(b)(1), 861(a), (b), title IX, §§ 901(a)(1), (2)(A), 902(a), (b), (d)(2)(C), (D), (e)(3)(B), 905(b), Aug. 17, 2006, 120 Stat. 853, 1000, 1020, 1021, 1026, 1029, 1033, 1035, 1038, 1050; Pub. L. 110–245, title I, § 104(a), June 17, 2008, 122 Stat. 1626; Pub. L. 110–458, title I, §§ 101(d)(2)(A)–(C), 109(a)–(b)(2), title II, § 201(a), Dec. 23, 2008, 122 Stat. 5099, 5111, 5116; Pub. L. 111–152, title I, § 1004(d)(5), Mar. 30, 2010, 124 Stat. 1036; Pub. L. 113–97, title II, § 202(c)(3)(A), (4), (5), Apr. 7, 2014, 128 Stat. 1136; Pub. L. 113–295, div. A, title II, § 221(a)(52), Dec. 19, 2014, 128 Stat. 4045; Pub. L. 115–123, div. D, title II, § 41114(a), (b), Feb. 9, 2018, 132 Stat. 161; Pub. L. 115–141, div. U, title IV, § 401(a)(69)–(72), Mar. 23, 2018, 132 Stat. 1187; Pub. L. 116–94, div. M, § 104(a), div. O, title I, §§ 102(a), 103(a)–(c), 109(a), (b), 112(a), 114(a), (b), title II, §§ 201(a), 205(a), (b), title IV, § 401(a), Dec. 20, 2019, 133 Stat. 3095, 3145–3147, 3149, 3150, 3153, 3156, 3162, 3167, 3172, 3176; Pub. L. 116–136, div. A, title II, § 2203(a), Mar. 27, 2020, 134 Stat. 343; Pub. L. 116–260, div. EE, title II, § 208(a), Dec. 27, 2020, Page 1209 TITLE 26—INTERNAL REVENUE CODE § 401 134 Stat. 3065; Pub. L. 117–328, div. T, title I, §§ 107(a)–(c), 110(a)–(c), 113(a), 116(b)(2), (3), 117(g), 121(a), 123(a), 125(a)(2)(B)(ii), (c), title II, § 201(a), title III, §§ 304(a), 312(a), 316(a), 317(a), 327(a), 334(a), (b)(1), 337(a), (b), title IV, § 401(a)(1), (2), (b)(2), (3), Dec. 29, 2022, 136 Stat. 5289–5291, 5295, 5299, 5301, 5308, 5313, 5315, 5330, 5341, 5347, 5352, 5359, 5368, 5370, 5373, 5387, 5388.) INFLATION ADJUSTED ITEMS FOR CERTAIN YEARS For inflation adjustment of certain items in this section, see Internal Revenue Notices listed in a table below. AMENDMENT OF SECTION Pub. L. 117–328, div. T, title I, § 123, Dec. 29, 2022, 136 Stat. 5313, provided that, applicable to plan years beginning after Dec. 31, 2027, sub- section (a)(35) of this section is amended by adding at the end the following new subpara- graph: ‘‘(I) ESOP rules relating to publicly traded se- curities.—In the case of an applicable defined contribution plan which is an employee stock ownership plan, an employer security shall be treated as described in subparagraph (G)(v) if— ‘‘(i) the security is the subject of priced quotations by at least 4 dealers, published and made continuously available on an inter- dealer quotation system (as such term is used in section 13 of the Securities Exchange Act of 1934) which has made the request described in section 6(j) of such Act to be treated as an al- ternative trading system, ‘‘(ii) the security is not a penny stock (as defined by section 3(a)(51) of such Act), ‘‘(iii) the security is issued by a corporation which is not a shell company (as such term is used in section 4(d)(6) of the Securities Act of 1933), a blank check company (as defined in section 7(b)(3) of such Act), or subject to bankruptcy proceedings, ‘‘(iv) the security has a public float (as such term is used in section 240.12b-2 of title 17, Code of Federal Regulations) which has a fair market value of at least $1,000,000 and con- stitutes at least 10 percent of the total shares issued and outstanding. ‘‘(v) in the case of a security issued by a do- mestic corporation, the issuer publishes, not less frequently than annually, financial state- ments audited by an independent auditor reg- istered with the Public Company Accounting Oversight Board established under the Sar- banes-Oxley Act of 2002, and ‘‘(vi) in the case of a security issued by a foreign corporation, the security is rep- resented by a depositary share (as defined under section 240.12b-2 of title 17, Code of Federal Regulations), or is issued by a foreign corporation incorporated in Canada and readily tradeable on an established securities market in Canada, and the issuer— ‘‘(I) is subject to, and in compliance with, the reporting requirements of section 13 or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)), ‘‘(II) is subject to, and in compliance with, the reporting requirements of section 230.257 of title 17, Code of Federal Regula- tions, or ‘‘(III) is exempt from such requirements under section 240.12g3–2(b) of title 17, Code of Federal Regulations.’’ See 2022 Amendment note below. Pub. L. 117–328, div. T, title III, § 334(a), (b)(1), (e), Dec. 29, 2022, 136 Stat. 5368, 5370, 5372, provided that, applicable to distributions made after the date which is 3 years after Dec. 29, 2022, this section is amended as follows: (1) in subsection (a), by inserting after para- graph (38) the following new paragraph: ‘‘(39) Qualified long-term care distributions ‘‘(A) In general.—A trust forming part of a defined contribution plan shall not be treated as failing to constitute a qualified trust under this section solely by reason of allowing qualified long-term care distributions. ‘‘(B) Qualified long-term care distribution.— For purposes of this paragraph— ‘‘(i) In general.—The term ‘qualified long- term care distribution’ means so much of the distributions made during the taxable year as does not exceed, in the aggregate, the least of the following: ‘‘(I) The amount paid by or assessed to the employee during the taxable year for or with respect to certified long-term care in- surance for the employee or the employee’s spouse (or other family member of the em- ployee as provided by the Secretary by regu- lation). ‘‘(II) An amount equal to 10 percent of the present value of the nonforfeitable ac- crued benefit of the employee under the plan. ‘‘(III) $2,500. ‘‘(ii) Adjustment for inflation.—In the case of taxable years beginning after December 31, 2024, the $2,500 amount in clause (i)(II) shall be increased by an amount equal to— ‘‘(I) such dollar amount, multiplied by ‘‘(II) the cost-of-living adjustment deter- mined under section 1(f)(3) for the calendar year in which the taxable year begins, de- termined by substituting ‘calendar year 2023’ for ‘calendar year 2016’ in subpara- graph (A)(ii) thereof. If any increase under the preceding sentence is not a multiple of $100, such amount shall be rounded to the nearest multiple of $100. ‘‘(C) Certified long-term care insurance.—The term ‘certified long-term care insurance’ means— ‘‘(i) a qualified long-term care insurance contract (as defined in section 7702B(b)) cov- ering qualified long-term care services (as de- fined in section 7702B(c)), ‘‘(ii) coverage of the risk that an insured in- dividual would become a chronically ill indi- vidual (within the meaning of section 101(g)(4)(B)) under a rider or other provision of a life insurance contract which satisfies the requirements of section 101(g)(3) (determined without regard to subparagraph (D) thereof), or ‘‘(iii) coverage of qualified long-term care services (as so defined) under a rider or other provision of an insurance or annuity contract which is treated as a separate contract under Page 1210 TITLE 26—INTERNAL REVENUE CODE § 401 section 7702B(e) and satisfies the requirements of section 7702B(g), if such coverage provides meaningful financial assistance in the event the insured needs home- based or nursing home care. For purposes of the preceding sentence, coverage shall not be deemed to provide meaningful financial assist- ance unless benefits are adjusted for inflation and consumer protections are provided, includ- ing protection in the event the coverage is termi- nated. ‘‘(D) Distributions must otherwise be includ- ible.—Rules similar to the rules of section 402(l)(3) shall apply for purposes of this para- graph. ‘‘(E) Long-term care premium statement.— ‘‘(i) In general.—No distribution shall be treated as a qualified long-term care distribu- tion unless a long-term care premium state- ment with respect to the employee has been filed with the plan. ‘‘(ii) Long-term care premium statement.— For purposes of this paragraph, a long-term care premium statement is a statement pro- vided by the issuer of long-term care coverage, upon request by the owner of such coverage, which includes— ‘‘(I) the name and taxpayer identification number of such issuer, ‘‘(II) a statement that the coverage is cer- tified long-term care insurance, ‘‘(III) identification of the employee as the owner of such coverage, ‘‘(IV) identification of the individual cov- ered and such individual’s relationship to the employee, ‘‘(V) the premiums owed for the coverage for the calendar year, and ‘‘(VI) such other information as the Sec- retary may require. ‘‘(iii) Filing with secretary.—A long-term care premium statement will be accepted only if the issuer has completed a disclosure to the Sec- retary for the specific coverage product to which the statement relates. Such disclosure shall identify the issuer, type of coverage, and such other information as the Secretary may re- quire which is included in the filing of the prod- uct with the applicable State authority.’’; and (2) in subsection (k)(2)(B)(i), by striking ‘‘or’’ at the end of subclause (V), by adding ‘‘or’’ at the end of subclause (VI), and by adding at the end the following new subclause: ‘‘(VII) as provided in section 401(a)(39),’’. See 2022 Amendment notes below. Editorial Notes REFERENCES IN TEXT The Employee Retirement Income Security Act of 1974, referred to in subsecs. (a)(12), (13)(C)(i)(II), (III), (iii)(II), (33)(C), (34), (35)(G)(iii), (36)(B) and (k)(15)(B)(i), is Pub. L. 93–406, Sept. 2, 1974, 88 Stat. 829. Part 4 of sub- title B of title I of the Act is classified generally to part 4 (§ 1101 et seq.) of subtitle B of subchapter I of chapter 18 of Title 29, Labor. Title IV of the Act is clas- sified generally to subchapter III (§ 1301 et seq.) of chap- ter 18 of Title 29. Sections 202, 407, 412, 4021, 4050, and 4203 of the Act are classified to sections 1052, 1107, 1112, 1321, 1350, and 1383, respectively, of Title 29. For com- plete classification of this Act to the Code, see Short Title note set out under section 1001 of Title 29 and Ta- bles. The Social Security Act, referred to in subsecs. (a)(15) and (l)(4)(C)(ii), (5)(A)(ii), (D)(ii), (E)(i), (F), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, which is classified generally to chapter 7 (§ 301 et seq.) of Title 42, The Public Health and Welfare. Title II of the Social Secu- rity Act is classified generally to subchapter II (§ 401 et seq.) of Title 42. Sections 223(d) and 230 of the Social Se- curity Act are classified to sections 423(d) and 430, re- spectively, of Title 42. For complete classification of this Act to the Code, see section 1305 of Title 42 and Ta- bles. Section 521 of the Unemployment Compensation Amendments of 1992, referred to in subsec. (a)(20), is section 521 of Pub. L. 102–318, which amended section 402(a) to (f) of this title generally, and, as so amended, subsec. (a) of section 402 does not contain a par. (6)(B). The Railroad Retirement Act of 1974, referred to in subsec. (l)(6), is act Aug. 29, 1935, ch. 812, as amended generally by Pub. L. 93–445, title I, § 101, Oct. 16, 1974, 88 Stat. 1305, which is classified generally to subchapter IV (§ 231 et seq.) of chapter 9 of Title 45, Railroads. For further details and complete classification of this Act to the Code, see Codification note set out preceding section 231 of Title 45, section 231t of Title 45, and Ta- bles. Section 472 of the Higher Education Act of 1965, as in effect on the day before the date of the enactment of the Taxpayer Relief Act of 1997, referred to in subsec. (m)(4)(D), means section 472 of Pub. L. 89–329, which is classified to section 1087ll of Title 20, Education, as in effect on the day before the date of enactment of Pub. L. 105–34, which was approved Aug. 5, 1997. AMENDMENTS 2022—Subsec. (a)(9)(B)(iv). Pub. L. 117–328, § 327(a), amended cl. (iv) generally. Prior to amendment, text read as follows: ‘‘If the designated beneficiary referred to in clause (iii)(I) is the surviving spouse of the em- ployee— ‘‘(I) the date on which the distributions are re- quired to begin under clause (iii)(III) shall not be ear- lier than the date on which the employee would have attained the applicable age, and ‘‘(II) if the surviving spouse dies before the distribu- tions to such spouse begin, this subparagraph shall be applied as if the surviving spouse were the em- ployee.’’ Subsec. (a)(9)(B)(iv)(I). Pub. L. 117–328, § 107(b), sub- stituted ‘‘the applicable age’’ for ‘‘age 72’’. Subsec. (a)(9)(C)(i)(I). Pub. L. 117–328, § 107(a), sub- stituted ‘‘the applicable age’’ for ‘‘age 72’’. Subsec. (a)(9)(C)(ii)(I). Pub. L. 117–328, § 107(b), sub- stituted ‘‘the applicable age’’ for ‘‘age 72’’. Subsec. (a)(9)(C)(v). Pub. L. 117–328, § 107(c), added cl. (v). Subsec. (a)(9)(H)(iv)(II). Pub. L. 117–328, § 337(a), sub- stituted ‘‘no beneficiary’’ for ‘‘no individual’’. Subsec. (a)(9)(H)(v). Pub. L. 117–328, § 337(b), inserted concluding provisions. Subsec. (a)(9)(J). Pub. L. 117–328, § 201(a), added sub- par. (J). Subsec. (a)(31)(B)(ii). Pub. L. 117–328, § 304(a), sub- stituted ‘‘$7,000’’ for ‘‘$5,000’’. Subsec. (a)(35)(I). Pub. L. 117–328, § 123(a), added sub- par. (I). Subsec. (a)(39). Pub. L. 117–328, § 334(a), added par. (39). Subsec. (b)(2). Pub. L. 117–328, § 317(a), inserted at end ‘‘In the case of an individual who owns the entire inter- est in an unincorporated trade or business, and who is the only employee of such trade or business, any elec- tive deferrals (as defined in section 402(g)(3)) under a qualified cash or deferred arrangement to which the preceding sentence applies, which are made by such in- dividual before the time for filing the return of such in- dividual for the taxable year (determined without re- gard to any extensions) ending after or with the end of the plan’s first plan year, shall be treated as having been made before the end of such first plan year.’’ Page 1211 TITLE 26—INTERNAL REVENUE CODE § 401 Subsec. (b)(3). Pub. L. 117–328, § 316(a), added par. (3). Subsec. (k)(2)(B)(i)(VII). Pub. L. 117–328, § 334(b)(1), added subcl. (VII). Subsec. (k)(2)(D)(ii). Pub. L. 117–328, § 125(c), sub- stituted ‘‘2’’ for ‘‘3’’. Subsec. (k)(4)(A). Pub. L. 117–328, § 113(a), inserted ‘‘(other than a de minimis financial incentive (not paid for with plan assets) provided to employees who elect to have the employer make contributions under the ar- rangement in lieu of receiving cash)’’ after ‘‘any other benefit’’. Subsec. (k)(11)(B)(i)(I). Pub. L. 117–328, § 117(g)(1), in- serted before comma at end ‘‘(after the application of any election under section 408(p)(2)(E)(i)(II))’’. Subsec. (k)(11)(B)(i)(III), (IV). Pub. L. 117–328, § 116(b)(2), (3), added subcl. (III), redesignated former subcl. (III) as (IV), and substituted ‘‘, (II), or (III)’’ for ‘‘or (II)’’ in subcl. (IV). Subsec. (k)(11)(E). Pub. L. 117–328, § 117(g)(2), added subpar. (E). Subsec. (k)(12)(G). Pub. L. 117–328, § 401(b)(2), sub- stituted ‘‘the contribution requirements under subpara- graph (B) or (C)’’ for ‘‘the requirements under subpara- graph (A)(i)’’. Subsec. (k)(13)(D)(iv). Pub. L. 117–328, § 401(b)(3), sub- stituted ‘‘and (G)’’ for ‘‘and (F)’’. Subsec. (k)(14)(C). Pub. L. 117–328, § 312(a), added sub- par. (C). Subsec. (k)(15)(B)(i). Pub. L. 117–328, § 125(a)(2)(B)(ii), in introductory provisions, inserted ‘‘, or by reason of such paragraph and section 202(c)(1)(B) of the Employee Retirement Income Security Act of 1974’’ after ‘‘para- graph (2)(D)(ii)’’. Subsec. (k)(15)(B)(i)(II). Pub. L. 117–328, § 401(a)(2)(A), substituted ‘‘paragraphs (2), (11), and (12) of subsection (m)’’ for ‘‘subsection (m)(2)’’. Subsec. (k)(15)(B)(iii). Pub. L. 117–328, § 401(a)(2)(B), substituted ‘‘under the plan’’ for ‘‘under the arrange- ment’’. Subsec. (k)(15)(B)(iv). Pub. L. 117–328, § 401(a)(2)(C), substituted ‘‘paragraph (2)(D)’’ for ‘‘section 410(a)(1)(A)(ii)’’. Subsec. (k)(16). Pub. L. 117–328, § 121(a), added par. (16). Subsec. (m)(4)(A)(iii). Pub. L. 117–328, § 110(a), added cl. (iii). Subsec. (m)(4)(D). Pub. L. 117–328, § 110(b), added sub- par. (D). Subsec. (m)(12)(B), (C). Pub. L. 117–328, § 401(a)(1), added subpar. (B) and redesignated former subpar. (B) as (C). Subsec. (m)(13), (14). Pub. L. 117–328, § 110(c), added par. (13) and redesignated former par. (13) as (14). 2020—Subsec. (a)(9)(I). Pub. L. 116–136 added subpar. (I). Subsec. (a)(36). Pub. L. 116–260 amended par. (36) gen- erally. Prior to amendment, text read as follows: ‘‘A trust forming part of a pension plan shall not be treat- ed as failing to constitute a qualified trust under this section solely because the plan provides that a distribu- tion may be made from such trust to an employee who has attained age 591⁄2 and who is not separated from em- ployment at the time of such distribution.’’ 2019—Subsec. (a)(9)(B)(iv)(I). Pub. L. 116–94, § 114(b), substituted ‘‘age 72’’ for ‘‘age 701⁄2’’. Subsec. (a)(9)(C)(i)(I). Pub. L. 116–94, § 114(a), sub- stituted ‘‘age 72’’ for ‘‘age 701⁄2’’. Subsec. (a)(9)(C)(ii)(I). Pub. L. 116–94, § 114(b), sub- stituted ‘‘age 72’’ for ‘‘age 701⁄2’’. Subsec. (a)(9)(E). Pub. L. 116–94, § 401(a)(2), amended subpar. (E) generally. Prior to amendment, text read as follows: ‘‘For purposes of this paragraph, the term ‘des- ignated beneficiary’ means any individual designated as a beneficiary by the employee.’’ Subsec. (a)(9)(H). Pub. L. 116–94, § 401(a)(1), added sub- par. (H). Subsec. (a)(26)(I). Pub. L. 116–94, § 205(b), added sub- par. (I). Subsec. (a)(36). Pub. L. 116–94, § 104(a), substituted ‘‘age 591⁄2’’ for ‘‘age 62’’. Subsec. (a)(38). Pub. L. 116–94, § 109(a), added par. (38). Subsec. (b). Pub. L. 116–94, § 201(a), substituted ‘‘plan amendments’’ for ‘‘retroactive changes in plan’’ in heading, designated existing provisions as par. (1) and inserted heading, and added par. (2). Subsec. (k)(2)(B)(i)(VI). Pub. L. 116–94, § 109(b)(1), added subcl. (VI). Subsec. (k)(2)(B)(iii). Pub. L. 116–94, § 109(b)(2), added cl. (iii). Subsec. (k)(2)(D). Pub. L. 116–94, § 112(a)(1), amended subpar. (D) generally. Prior to amendment, subpar. (D) read as follows: ‘‘which does not require, as a condition of participation in the arrangement, that an employee complete a period of service with the employer (or em- ployers) maintaining the plan extending beyond the pe- riod permitted under section 410(a)(1) (determined with- out regard to subparagraph (B)(i) thereof).’’ Subsec. (k)(12)(A). Pub. L. 116–94, § 103(a)(1), added cls. (i) and (ii) and struck out former cls. (i) and (ii) which read as follows: ‘‘(i) meets the contribution requirements of subpara- graph (B) or (C), and ‘‘(ii) meets the notice requirements of subparagraph (D).’’ Subsec. (k)(12)(F), (G). Pub. L. 116–94, § 103(b), added subpar. (F) and redesignated former subpar. (F) as (G). Subsec. (k)(13)(B). Pub. L. 116–94, § 103(a)(2), sub- stituted ‘‘means a cash or deferred arrangement—’’ for ‘‘means any cash or deferred arrangement which meets the requirements of subparagraphs (C) through (E).’’ and added cls. (i) and (ii). Subsec. (k)(13)(C)(iii). Pub. L. 116–94, § 102(a), sub- stituted ‘‘does not exceed 15 percent (10 percent during the period described in subclause (I))’’ for ‘‘does not ex- ceed 10 percent’’ in introductory provisions. Subsec. (k)(13)(F). Pub. L. 116–94, § 103(c), added sub- par. (F). Subsec. (k)(15). Pub. L. 116–94, § 112(a)(2), added par. (15). Subsecs. (o), (p). Pub. L. 116–94, § 205(a), added subsec. (o) and redesignated former subsec. (o) as (p). 2018—Subsec. (a)(2). Pub. L. 115–141, § 401(a)(69), sub- stituted ‘‘determination));’’ for ‘‘determination).;’’. Subsec. (a)(15). Pub. L. 115–141, § 401(a)(70), substituted ‘‘A trust’’ for ‘‘a trust’’ in introductory provisions. Subsec. (a)(32)(A). Pub. L. 115–141, § 401(a)(71), sub- stituted ‘‘section 430(j)(4) or 433(f)(5)’’ for ‘‘section sec- tion 430(j)(4) or 433(f)(5)’’ in two places. Subsec. (c)(2)(A)(iii). Pub. L. 115–141, § 401(a)(72), sub- stituted ‘‘subparagraph (A), (C), or (D) of section 3121(d)(3), without regard to section 1402(c)(2)’’ for ‘‘sec- tions 3121(d)(3)(A), (C), or (D), without regard to para- graph (2) of section 1402(c)’’. Subsec. (k)(2)(B)(i)(IV). Pub. L. 115–123, § 41114(b), amended subcl. (IV) generally. Prior to amendment, subcl. (IV) read as follows: ‘‘in the case of contributions to a profit-sharing or stock bonus plan to which section 402(e)(3) applies, upon hardship of the employee, or’’. Subsec. (k)(14). Pub. L. 115–123, § 41114(a), added par. (14). 2014—Subsec. (a)(9)(H). Pub. L. 113–295 struck out sub- par. (H) which related to a waiver from the minimum distribution requirements of subsec. (a)(9) during cal- endar year 2009 for certain defined contribution and in- dividual retirement plans. Subsec. (a)(29). Pub. L. 113–97, § 202(c)(3)(A), sub- stituted ‘‘multiemployer plan or a CSEC plan’’ for ‘‘multiemployer plan’’. Subsec. (a)(32)(A). Pub. L. 113–97, § 202(c)(5)(A), sub- stituted ‘‘430(j)(4) or 433(f)(5)’’ for ‘‘430(j)(4)’’ in two places. Subsec. (a)(32)(C). Pub. L. 113–97, § 202(c)(5)(B), sub- stituted ‘‘430(j)(3) or 433(f) by reason of section 430(j)(4)(A) or 433(f)(5), respectively’’ for ‘‘430(j)(3) by reason of section 430(j)(4)(A) thereof’’. Subsec. (a)(33)(C). Pub. L. 113–97, § 202(c)(4), sub- stituted ‘‘multiemployer plans or CSEC plans’’ for ‘‘multiemployer plans’’. 2010—Subsec. (h). Pub. L. 111–152 inserted at end ‘‘For purposes of this subsection, the term ‘dependent’ shall Page 1212 TITLE 26—INTERNAL REVENUE CODE § 401 include any individual who is a child (as defined in sec- tion 152(f)(1)) of a retired employee who as of the end of the calendar year has not attained age 27.’’ 2008—Subsec. (a)(9)(H). Pub. L. 110–458, § 201(a), added subpar. (H). Subsec. (a)(29). Pub. L. 110–458, § 101(d)(2)(A), struck out ‘‘on plans in at-risk status’’ after ‘‘limitations’’ in heading. Subsec. (a)(32)(C). Pub. L. 110–458, § 101(d)(2)(B), sub- stituted ‘‘section 430(j)(3)’’ for ‘‘section 430(j)’’ and ‘‘sec- tion 430(j)(4)(A)’’ for ‘‘paragraph (5)(A)’’. Subsec. (a)(33)(B)(iii). Pub. L. 110–458, § 101(d)(2)(C)(i), substituted ‘‘section 412(d)(2)’’ for ‘‘section 412(c)(2)’’. Subsec. (a)(33)(D). Pub. L. 110–458, § 101(d)(2)(C)(ii), substituted ‘‘section 412(b)(1), without regard to section 412(b)(2)’’ for ‘‘section 412(b)(2) (without regard to sub- paragraph (B) thereof)’’. Subsec. (a)(35)(E)(iv). Pub. L. 110–458, § 109(a), amend- ed cl. (iv) generally. Prior to amendment, text read as follows: ‘‘For purposes of clause (iii), the term ‘one-par- ticipant retirement plan’ means a retirement plan that— ‘‘(I) on the first day of the plan year covered only one individual (or the individual and the individual’s spouse) and the individual owned 100 percent of the plan sponsor (whether or not incorporated), or cov- ered only one or more partners (or partners and their spouses) in the plan sponsor, ‘‘(II) meets the minimum coverage requirements of section 410(b) without being combined with any other plan of the business that covers the employees of the business, ‘‘(III) does not provide benefits to anyone except the individual (and the individual’s spouse) or the partners (and their spouses), ‘‘(IV) does not cover a business that is a member of an affiliated service group, a controlled group of cor- porations, or a group of businesses under common control, and ‘‘(V) does not cover a business that uses the serv- ices of leased employees (within the meaning of sec- tion 414(n)). For purposes of this clause, the term ‘partner’ includes a 2-percent shareholder (as defined in section 1372(b)) of an S corporation.’’ Subsec. (a)(37). Pub. L. 110–245 added par. (37). Subsec. (k)(8)(E). Pub. L. 110–458, § 109(b)(2), sub- stituted ‘‘permissible withdrawal’’ for ‘‘erroneous auto- matic contribution’’ in heading and ‘‘a permissible withdrawal’’ for ‘‘an erroneous automatic contribu- tion’’ in text. Subsec. (k)(13)(D)(i)(I). Pub. L. 110–458, § 109(b)(1), sub- stituted ‘‘such contributions as exceed 1 percent but do not’’ for ‘‘such compensation as exceeds 1 percent but does not’’. 2006—Subsec. (a)(5)(G). Pub. L. 109–280, § 861(a)(1), (b)(1), substituted ‘‘Governmental’’ for ‘‘State and local governmental’’ in heading and ‘‘section 414(d))’’ for ‘‘section 414(d)) maintained by a State or local govern- ment or political subdivision thereof (or agency or in- strumentality thereof)’’ in text. Subsec. (a)(26)(G). Pub. L. 109–280, § 861(a)(1), (b)(2), substituted ‘‘Exception for’’ for ‘‘Exception for state and local’’ in heading and ‘‘section 414(d))’’ for ‘‘section 414(d)) maintained by a State or local government or political subdivision thereof (or agency or instrumen- tality thereof)’’ in text. Subsec. (a)(28)(B)(v). Pub. L. 109–280, § 901(a)(2)(A), added cl. (v). Subsec. (a)(29). Pub. L. 109–280, § 114(a)(1), amended heading and text of par. (29) generally, substituting provisions relating to benefit limitations on plans in at-risk status for provisions relating to security re- quired upon adoption of plan amendment resulting in significant underfunding. Subsec. (a)(32)(A). Pub. L. 109–280, § 114(a)(2)(A), sub- stituted ‘‘section 430(j)(4)’’ for ‘‘412(m)(5)’’ in two places. Subsec. (a)(32)(C). Pub. L. 109–280, § 114(a)(2)(B), sub- stituted ‘‘section 430(j)’’ for ‘‘section 412(m)’’. Subsec. (a)(33)(B)(i). Pub. L. 109–280, § 114(a)(3)(A), which directed amendment of cl. (i) by substituting ‘‘funding target attainment percentage (as defined in section 430(d)(2))’’ for ‘‘funded current liability percent- age (within the meaning of section 412(l)(8))’’, was exe- cuted by making the substitution for ‘‘funded current liability percentage (as defined in section 412(l)(8))’’, to reflect the probable intent of Congress. Subsec. (a)(33)(B)(iii). Pub. L. 109–280, § 114(a)(3)(B), substituted ‘‘section 412(c)(2)’’ for ‘‘subsection 412(c)(8)’’. Subsec. (a)(33)(D). Pub. L. 109–280, § 114(a)(3)(C), sub- stituted ‘‘section 412(b)(2) (without regard to subpara- graph (B) thereof)’’ for ‘‘section 412(c)(11) (without re- gard to subparagraph (B) thereof)’’. Subsec. (a)(35). Pub. L. 109–280, § 901(a)(1), added par. (35). Subsec. (a)(36). Pub. L. 109–280, § 905(b), added par. (36). Subsec. (k)(2)(B)(i)(V). Pub. L. 109–280, § 827(b)(1), added subcl. (V). Subsec. (k)(3)(G). Pub. L. 109–280, § 861(a)(2), (b)(3), in- serted heading and struck out ‘‘maintained by a State or local government or political subdivision thereof (or agency or instrumentality thereof)’’ after ‘‘414(d))’’ in text. Subsec. (k)(8)(A)(i). Pub. L. 109–280, § 902(e)(3)(B)(i), in- serted ‘‘through the end of such year’’ after ‘‘such con- tributions’’. Subsec. (k)(8)(E). Pub. L. 109–280, § 902(d)(2)(C), (D), in- serted ‘‘or erroneous automatic contribution’’ after ‘‘or contribution’’ in heading and inserted ‘‘an erroneous automatic contribution under section 414(w),’’ after ‘‘402(g)(2)(A),’’ in text. Subsec. (k)(13). Pub. L. 109–280, § 902(a), added par. (13). Subsec. (m)(6)(A). Pub. L. 109–280, § 902(e)(3)(B)(ii), in- serted ‘‘through the end of such year’’ after ‘‘to such contributions’’. Subsec. (m)(12), (13). Pub. L. 109–280, § 902(b), added par. (12) and redesignated former par. (12) as (13). 2004—Subsec. (a)(26)(C) to (I). Pub. L. 108–311 redesig- nated subpars. (D) to (I) as (C) to (H), respectively, and struck out heading and text of former subpar. (C). Text read as follows: ‘‘In the case of contributions under sec- tion 401(k) or 401(m), employees who are eligible to con- tribute (or may elect to have contributions made on their behalf) shall be treated as benefiting under the plan.’’ 2002—Subsec. (a)(30). Pub. L. 107–147, § 411(o)(2), sub- stituted ‘‘402(g)(1)(A)’’ for ‘‘402(g)(1)’’. Subsec. (a)(31)(C)(i). Pub. L. 107–147, § 411(q)(1), in- serted ‘‘is a qualified trust which is part of a plan which is a defined contribution plan and’’ before ‘‘agrees’’. 2001—Subsec. (a)(17). Pub. L. 107–16, § 611(c)(1), sub- stituted ‘‘$200,000’’ for ‘‘$150,000’’ in two places. Subsec. (a)(17)(B). Pub. L. 107–16, § 611(c)(2), sub- stituted ‘‘July 1, 2001’’ for ‘‘October 1, 1993’’ and sub- stituted ‘‘$5,000’’ for ‘‘$10,000’’ in two places. Subsec. (a)(31). Pub. L. 107–16, § 657(a)(2)(A), sub- stituted ‘‘Direct’’ for ‘‘Optional direct’’ in heading. Subsec. (a)(31)(B). Pub. L. 107–16, § 657(a)(1), added sub- par. (B). Former subpar. (B) redesignated (C). Pub. L. 107–16, § 643(b), inserted at end ‘‘The preceding sentence shall not apply to such distribution if the plan to which such distribution is transferred— ‘‘(i) agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible, or ‘‘(ii) is an eligible retirement plan described in clause (i) or (ii) of section 402(c)(8)(B).’’ Pub. L. 107–16, § 641(e)(3), substituted ‘‘, 403(a)(4), 403(b)(8), and 457(e)(16)’’ for ‘‘and 403(a)(4)’’. Subsec. (a)(31)(C). Pub. L. 107–16, § 657(a)(2)(B), sub- stituted ‘‘Subparagraphs (A) and (B)’’ for ‘‘Subpara- graph (A)’’. Pub. L. 107–16, § 657(a)(1), redesignated subpar. (B) as (C). Former subpar. (C) redesignated (D). Page 1213 TITLE 26—INTERNAL REVENUE CODE § 401 Subsec. (a)(31)(D), (E). Pub. L. 107–16, § 657(a)(1), redes- ignated subpars. (C) and (D) as (D) and (E), respec- tively. Subsec. (c)(2)(A). Pub. L. 107–16, § 611(g)(1), inserted at end ‘‘For purposes of this part only (other than sections 419 and 419A), this subparagraph shall be applied as if the term ‘trade or business’ for purposes of section 1402 included service described in section 1402(c)(6).’’ Subsec. (k)(2)(B)(i)(I). Pub. L. 107–16, § 646(a)(1)(A), substituted ‘‘severance from employment’’ for ‘‘separa- tion from service’’. Subsec. (k)(10). Pub. L. 107–16, § 646(a)(1)(C)(iii), struck out ‘‘or disposition of assets or subsidiary’’ after ‘‘plan’’ in heading. Subsec. (k)(10)(A). Pub. L. 107–16, § 646(a)(1)(B), reen- acted heading without change and amended text gen- erally, substituting present provisions for provisions including termination of plan, disposition of assets, and disposition of subsidiary as events described in this paragraph. Subsec. (k)(10)(B)(i). Pub. L. 107–16, § 646(a)(1)(C)(i), substituted ‘‘A termination’’ for ‘‘An event’’ and ‘‘the termination’’ for ‘‘the event’’. Subsec. (k)(10)(C). Pub. L. 107–16, § 646(a)(1)(C)(ii), struck out heading and text of subpar. (C). Text read as follows: ‘‘An event shall not be treated as described in clause (ii) or (iii) of subparagraph (A) unless the trans- feror corporation continues to maintain the plan after the disposition.’’ Subsec. (k)(11)(B)(i)(I). Pub. L. 107–16, § 611(f)(3)(A), substituted ‘‘the amount in effect under section 408(p)(2)(A)(ii)’’ for ‘‘$6,000’’. Subsec. (k)(11)(E). Pub. L. 107–16, § 611(f)(3)(B), struck out heading and text of subpar. (E). Text read as fol- lows: ‘‘The Secretary shall adjust the $6,000 amount under subparagraph (B)(i)(I) at the same time and in the same manner as under section 408(p)(2)(E).’’ Subsec. (m)(9). Pub. L. 107–16, § 666(a), reenacted head- ing without change and amended text generally. Prior to amendment, text read as follows: ‘‘The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this subsection and sub- section (k) including— ‘‘(A) such regulations as may be necessary to pre- vent the multiple use of the alternative limitation with respect to any highly compensated employee, and ‘‘(B) regulations permitting appropriate aggrega- tion of plans and contributions. For purposes of the preceding sentence, the term ‘alter- native limitation’ means the limitation of section 401(k)(3)(A)(ii)(II) and the limitation of paragraph (2)(A)(ii) of this subsection.’’ 2000—Subsec. (k)(10)(B)(ii). Pub. L. 106–554 inserted at end ‘‘Such term includes a distribution of an annuity contract from— ‘‘(I) a trust which forms a part of a plan described in section 401(a) and which is exempt from tax under section 501(a), or ‘‘(II) an annuity plan described in section 403(a).’’ 1997—Subsec. (a)(1). Pub. L. 105–34, § 1530(c)(1), in- serted ‘‘or by a charitable remainder trust pursuant to a qualified gratuitous transfer (as defined in section 664(g)(1)),’’ after ‘‘stock bonus plans),’’. Subsec. (a)(5)(G). Pub. L. 105–34, § 1505(a)(1), added subpar. (G). Subsec. (a)(13)(C), (D). Pub. L. 105–34, § 1502(b), added subpars. (C) and (D). Subsec. (a)(26)(H). Pub. L. 105–34, § 1505(a)(2), amended heading and text of subpar. (H) generally. Prior to amendment, text read as follows: ‘‘(i) IN GENERAL.—An employer may elect to have this paragraph applied separately with respect to any clas- sification of qualified public safety employees for whom a separate plan is maintained. ‘‘(ii) QUALIFIED PUBLIC SAFETY EMPLOYEE.—For pur- poses of this subparagraph, the term ‘qualified public safety employee’ means any employee of any police de- partment or fire department organized and operated by a State or political subdivision if the employee pro- vides police protection, firefighting services, or emer- gency medical services for any area within the jurisdic- tion of such State or political subdivision.’’ Subsec. (k)(3)(G). Pub. L. 105–34, § 1505(b), added sub- par. (G). Subsec. (k)(7)(B)(iii) to (v). Pub. L. 105–34, § 1525(a), struck out ‘‘and’’ at end of cl. (iii), added cl. (iv), redes- ignated former cl. (iv) as (v), and in cl. (v), substituted ‘‘, (iii), or (iv)’’ for ‘‘or (iii)’’. Subsec. (k)(11)(B)(iii). Pub. L. 105–34, § 1601(d)(2)(D), added cl. (iii). Subsec. (k)(11)(D)(ii). Pub. L. 105–34, § 1601(d)(2)(A), in- serted ‘‘if such plan allows only contributions required under this paragraph’’ before period at end. Subsec. (k)(11)(E). Pub. L. 105–34, § 1601(d)(2)(B), added subpar. (E). Subsec. (m)(11). Pub. L. 105–34, § 1601(d)(3), substituted ‘‘Additional alternative’’ for ‘‘Alternative’’ in heading. 1996—Subsec. (a)(5)(D)(ii). Pub. L. 104–188, § 1431(c)(1)(B), substituted ‘‘section 414(q)(4)’’ for ‘‘sec- tion 414(q)(7)’’ in introductory provisions. Subsec. (a)(5)(F). Pub. L. 104–188, § 1445(a), added sub- par. (F). Subsec. (a)(9)(C). Pub. L. 104–188, § 1404(a), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: ‘‘For pur- poses of this paragraph, the term ‘required beginning date’ means April 1 of the calendar year following the calendar year in which the employee attains age 701⁄2. In the case of a governmental plan or church plan, the required beginning date shall be the later of the date determined under the preceding sentence or April 1 of the calendar year following the calendar year in which the employee retires. For purposes of this subpara- graph, the term ‘church plan’ means a plan maintained by a church for church employees, and the term ‘church’ means any church (as defined in section 3121(w)(3)(A)) or qualified church-controlled organiza- tion (as defined in section 3121(w)(3)(B)).’’ Subsec. (a)(17)(A). Pub. L. 104–188, § 1431(b)(2), struck out at end ‘‘In determining the compensation of an em- ployee, the rules of section 414(q)(6) shall apply, except that in applying such rules, the term ‘family’ shall in- clude only the spouse of the employee and any lineal descendants of the employee who have not attained age 19 before the close of the year.’’ Subsec. (a)(20). Pub. L. 104–188, § 1704(t)(67), sub- stituted ‘‘section 521’’ for ‘‘section 211’’ in last sen- tence. Subsec. (a)(26)(A). Pub. L. 104–188, § 1432(a), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: ‘‘A trust shall not constitute a qualified trust under this sub- section unless such trust is part of a plan which on each day of the plan year benefits the lesser of— ‘‘(i) 50 employees of the employer, or ‘‘(ii) 40 percent or more of all employees of the em- ployer.’’ Subsec. (a)(26)(G). Pub. L. 104–188, § 1432(b), sub- stituted ‘‘paragraph (2)(A) or (7)’’ for ‘‘paragraph (7)’’. Subsec. (a)(28)(B)(v). Pub. L. 104–188, § 1401(b)(5), struck out cl. (v) which read as follows: ‘‘(v) COORDINATION WITH DISTRIBUTION RULES.—Any distribution required by this subparagraph shall not be taken into account in determining whether a subse- quent distribution is a lump sum distribution under section 402(d)(4)(A) or in determining whether section 402(c)(10) applies.’’ Subsec. (d). Pub. L. 104–188, § 1441(a), amended subsec. (d) generally, substituting provisions relating to con- tribution limit on owner-employees for former provi- sions relating to additional requirements for qualifica- tion of trusts and plans benefiting owner-employees. Subsec. (h). Pub. L. 104–188, § 1704(a), provided that, except as otherwise expressly provided, whenever in title XII of Pub. L. 101–508 an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be con- sidered to be made to a section or other provision of the Internal Revenue Code of 1986. Section 12011(b) of Page 1214 TITLE 26—INTERNAL REVENUE CODE § 401 title XII of Pub. L. 101–508 directed the amendment of this section without specifying that the amendment was to the Internal Revenue Code of 1986. See 1990 Amendment note below. Subsec. (k)(3)(A). Pub. L. 104–188, § 1433(c)(1), in intro- ductory provisions of cl. (ii) substituted ‘‘the plan year’’ for ‘‘such year’’ and ‘‘for the preceding plan year’’ for ‘‘for such plan year’’ and inserted at end of closing provisions of subpar. (A) ‘‘An arrangement may apply clause (ii) by using the plan year rather than the preceding plan year if the employer so elects, except that if such an election is made, it may not be changed except as provided by the Secretary.’’ Subsec. (k)(3)(E). Pub. L. 104–188, § 1433(d)(1), added subpar. (E). Subsec. (k)(3)(F). Pub. L. 104–188, § 1459(a), added sub- par. (F). Subsec. (k)(4)(B). Pub. L. 104–188, § 1426(a), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘(B) STATE AND LOCAL GOVERNMENTS AND TAX-EXEMPT ORGANIZATIONS NOT ELIGIBLE.—A cash or deferred ar- rangement shall not be treated as a qualified cash or deferred arrangement if it is part of a plan maintained by— ‘‘(i) a State or local government or political sub- division thereof, or any agency or instrumentality thereof, or ‘‘(ii) any organization exempt from tax under this subtitle. This subparagraph shall not apply to a rural coopera- tive plan.’’ Subsec. (k)(7)(B)(i). Pub. L. 104–188, § 1443(b), amended cl. (i) generally. Prior to amendment, cl. (i) read as fol- lows: ‘‘any organization which— ‘‘(I) is exempt from tax under this subtitle or which is a State or local government or political subdivi- sion thereof (or agency or instrumentality thereof), and ‘‘(II) is engaged primarily in providing electric service on a mutual or cooperative basis,’’. Subsec. (k)(7)(C). Pub. L. 104–188, § 1443(a), added sub- par. (C). Subsec. (k)(8)(C). Pub. L. 104–188, § 1433(e)(1), sub- stituted ‘‘on the basis of the amount of contributions by, or on behalf of, each of such employees’’ for ‘‘on the basis of the respective portions of the excess contribu- tions attributable to each of such employees’’. Subsec. (k)(10)(B)(ii). Pub. L. 104–188, § 1401(b)(6), amended cl. (ii) generally. Prior to amendment, cl. (ii) read as follows: ‘‘(ii) LUMP SUM DISTRIBUTION.—For purposes of this subparagraph, the term ‘lump sum distribution’ has the meaning given such term by section 402(d)(4), without regard to clauses (i), (ii), (iii), and (iv) of subparagraph (A), subparagraph (B), or subparagraph (F) thereof.’’ Subsec. (k)(11). Pub. L. 104–188, § 1422(a), added par. (11). Subsec. (k)(12). Pub. L. 104–188, § 1433(a), added par. (12). Subsec. (m)(2)(A). Pub. L. 104–188, § 1433(c)(2), inserted ‘‘for such plan year’’ after ‘‘highly compensated em- ployees’’ in introductory provisions, inserted ‘‘for the preceding plan year’’ after ‘‘eligible employees’’ wher- ever appearing in cls. (i) and (ii), and inserted at end ‘‘This subparagraph may be applied by using the plan year rather than the preceding plan year if the em- ployer so elects, except that if such an election is made, it may not be changed except as provided by the Secretary.’’ Subsec. (m)(3). Pub. L. 104–188, § 1433(d)(2), inserted at end of closing provisions ‘‘Rules similar to the rules of subsection (k)(3)(E) shall apply for purposes of this sub- section.’’ Subsec. (m)(5)(C). Pub. L. 104–188, § 1459(b), added sub- par. (C). Subsec. (m)(6)(C). Pub. L. 104–188, § 1433(e)(2), sub- stituted ‘‘on the basis of the amount of contributions on behalf of, or by, each such employee’’ for ‘‘on the basis of the respective portions of such amounts attrib- utable to each of such employees’’. Subsec. (m)(10). Pub. L. 104–188, § 1422(b), added par. (10). Former par. (10) redesignated (11). Subsec. (m)(11). Pub. L. 104–188, § 1433(b), added par. (11). Former par. (11) redesignated (12). Pub. L. 104–188, § 1422(b), redesignated par. (10) as (11). Subsec. (m)(12). Pub. L. 104–188, § 1433(b), redesignated par. (11) as (12). 1994—Subsec. (a)(17)(B). Pub. L. 103–465, § 732(a), reen- acted subpar. (B) heading without change and amended text generally. Prior to amendment, text read as fol- lows: ‘‘(i) IN GENERAL.—If, for any calendar year after 1994, the excess (if any) of— ‘‘(I) $150,000, increased by the cost-of-living adjust- ment for the calendar year, over ‘‘(II) the dollar amount in effect under subpara- graph (A) for taxable years beginning in the calendar year, is equal to or greater than $10,000, then the $150,000 amount under subparagraph (A) (as previously adjusted under this subparagraph) for any taxable year begin- ning in any subsequent calendar year shall be increased by the amount of such excess, rounded to the next low- est multiple of $10,000. ‘‘(ii) COST-OF-LIVING ADJUSTMENT.—The cost-of-living adjustment for any calendar year shall be the adjust- ment made under section 415(d) for such calendar year, except that the base period for purposes of section 415(d)(1)(A) shall be the calendar quarter beginning Oc- tober 1, 1993.’’ Subsec. (a)(32). Pub. L. 103–465, § 751(a)(9)(C), which di- rected amendment of subsec. (a) by adding par. (32) at end, was executed by adding par. (32) after par. (31) to reflect the probable intent of Congress. Subsec. (a)(33). Pub. L. 103–465, § 766(b), which directed amendment of subsec. (a) by adding par. (33) at end, was executed by adding par. (33) after par. (32) to reflect the probable intent of Congress. Subsec. (a)(34). Pub. L. 103–465, § 776(d), added par. (34). 1993—Subsec. (a)(17). Pub. L. 103–66 inserted par. head- ing, designated existing provisions as subpar. (A), in- serted subpar. heading, substituted ‘‘$150,000’’ for ‘‘$200,000’’ in first sentence, struck out after first sen- tence ‘‘The Secretary shall adjust the $200,000 amount at the same time and in the same manner as under sec- tion 415(d).’’, and added subpar. (B). 1992—Subsec. (a)(20). Pub. L. 102–318, § 521(b)(5), sub- stituted ‘‘1 or more distributions within 1 taxable year to a distributee on account of a termination of the plan of which the trust is a part, or in the case of a profit- sharing or stock bonus plan, a complete discontinuance of contributions under such plan’’ for ‘‘a qualified total distribution described in section 402(a)(5)(E)(i)(I)’’ and inserted at end ‘‘For purposes of this paragraph, rules similar to the rules of section 402(a)(6)(B) (as in effect before its repeal by section 211 of the Unemployment Compensation Amendments of 1992) shall apply.’’ Subsec. (a)(28)(B)(v). Pub. L. 102–318, § 521(b)(6), amended cl. (v) generally. Prior to amendment, cl. (v) read as follows: ‘‘Any distribution required by this sub- paragraph shall not be taken into account in deter- mining whether— ‘‘(I) a subsequent distribution is a lump-sum dis- tribution under section 402(e)(4)(A), or ‘‘(II) section 402(a)(5)(D)(iii) applies to a subsequent distribution.’’ Subsec. (a)(31). Pub. L. 102–318, § 522(a)(1), added par. (31). Subsec. (k)(2)(B)(i)(IV). Pub. L. 102–318, § 521(b)(7), substituted ‘‘402(e)(3)’’ for ‘‘402(a)(8)’’. Subsec. (k)(10)(B)(ii). Pub. L. 102–318, § 521(b)(8), sub- stituted ‘‘402(d)(4)’’ for ‘‘402(e)(4)’’ and ‘‘subparagraph (F)’’ for ‘‘subparagraph (H)’’. 1990—Subsec. (h). Pub. L. 101–508, which directed that ‘‘section 401(h) is amended by inserting ‘, and subject to the provisions of section 420’ ’’ without specifying that amendment was to the Internal Revenue Code of 1986, was executed by making the insertion in subsec. (h) of this section. See 1996 Amendment note above. 1989—Subsec. (a)(9)(C). Pub. L. 101–140 struck out ‘‘(as defined in section 89(i)(4))’’ after ‘‘governmental or Page 1215 TITLE 26—INTERNAL REVENUE CODE § 401 church plan’’ and inserted at end ‘‘For purposes of this subparagraph, the term ‘church plan’ means a plan maintained by a church for church employees, and the term ‘church’ means any church (as defined in section 3121(w)(3)(A)) or qualified church-controlled organiza- tion (as defined in section 3121(w)(3)(B)).’’ Subsec. (a)(28)(B)(ii)(II). Pub. L. 101–239, § 7811(h)(3), made technical correction to directory language of Pub. L. 100–647, § 1011B(j)(1), see 1988 Amendment note below. Subsec. (a)(29)(A)(i). Pub. L. 101–239, § 7881(i)(4)(A), substituted ‘‘multiemployer plan) to which the require- ments of section 412 apply’’ for ‘‘multiemployer plan)’’. Subsec. (a)(29)(C)(i)(II). Pub. L. 101–239, § 7881(i)(1)(A), substituted ‘‘plan amendment and any other plan amendments adopted after December 22, 1987, and be- fore such plan amendment’’ for ‘‘plan amendment’’. Subsec. (a)(30). Pub. L. 101–239, § 7811(g)(1), moved par. (30) from a position after the undesignated closing par. to a position immediately after par. (29). Subsec. (h). Pub. L. 101–239, § 7311(a), inserted at end ‘‘In no event shall the requirements of paragraph (1) be treated as met if the aggregate actual contributions for medical benefits, when added to actual contributions for life insurance protection under the plan, exceed 25 percent of the total actual contributions to the plan (other than contributions to fund past service credits) after the date on which the account is established.’’ Subsec. (k)(4)(B). Pub. L. 101–239, § 7816(l), amended Pub. L. 100–647, § 6071(b)(2), see 1988 Amendment note below. 1988—Subsec. (a)(9)(C). Pub. L. 100–647, § 6053(a), in- serted at end ‘‘In the case of a governmental plan or church plan (as defined in section 89(i)(4)), the required beginning date shall be the later of the date determined under the preceding sentence or April 1 of the calendar year following the calendar year in which the employee retires.’’ Subsec. (a)(11)(E), (F). Pub. L. 100–647, § 1011A(l), re- designated subpar. (E), relating to cross reference, as (F). Subsec. (a)(17). Pub. L. 100–647, § 1011(d)(4), inserted at end ‘‘In determining the compensation of an employee, the rules of section 414(q)(6) shall apply, except that in applying such rules, the term ‘family’ shall include only the spouse of the employee and any lineal descend- ants of the employee who have not attained age 19 be- fore the close of the year.’’ Subsec. (a)(22). Pub. L. 100–647, § 1011B(k)(1), (2), sub- stituted ‘‘is not readily tradable on an established mar- ket’’ for ‘‘is not publicly traded’’ in subpar. (A) and in last sentence, and inserted at end ‘‘For purposes of the preceding sentence, subsections (b), (c), (m), and (o) of section 414 shall not apply except for determining whether stock of the employer is not readily tradable on an established market.’’ Subsec. (a)(26)(F), (G). Pub. L. 100–647, § 1011(h)(3), added subpars. (F) and (G). Former subpar. (F) redesig- nated (H). Subsec. (a)(26)(H). Pub. L. 100–647, § 6055(a), added sub- par. (H). Former subpar. (H) redesignated (I). Pub. L. 100–647, § 1011(h)(3), redesignated former sub- par. (F) as (H). Subsec. (a)(26)(I). Pub. L. 100–647, § 6055(a), redesig- nated former subpar. (H) as (I). Subsec. (a)(27). Pub. L. 100–647, § 1011A(j), inserted par. heading, designated existing provisions as subpar. (A), inserted subpar. (A) heading, and added subpar. (B). Subsec. (a)(28)(B)(ii)(II). Pub. L. 100–647, § 1011B(j)(1), as amended by Pub. L. 101–239, § 7811(h)(3), inserted ‘‘and within 90 days after the period during which the elec- tion may be made, the plan invests the portion of the participant’s account covered by the election in accord- ance with such election’’ after ‘‘clause (i)’’. Subsec. (a)(28)(B)(iv). Pub. L. 100–647, § 1011B(d)(2), amended cl. (iv) generally. Prior to amendment, cl. (iv) read as follows: ‘‘For purposes of this subparagraph, the term ‘qualified election period’ means the 5-plan-year period beginning with the plan year after the plan year in which the participant attains age 55 (or, if later, be- ginning with the plan year after the 1st plan year in which the individual 1st became a qualified partici- pant).’’ Subsec. (a)(28)(B)(v). Pub. L. 100–647, § 1011B(j)(6), added cl. (v). Subsec. (a)(30). Pub. L. 100–647, § 1011(c)(7)(A), added par. (30) at end. Subsec. (k)(1), (2). Pub. L. 100–647, § 6071(a), struck out ‘‘electric’’ after ‘‘or a rural’’. Subsec. (k)(2)(B). Pub. L. 100–647, § 1011(k)(2)(A), in- serted ‘‘amounts held by the trust which are attrib- utable to employer contributions made pursuant to the employee’s election’’ after ‘‘under which’’. Subsec. (k)(2)(B)(i). Pub. L. 100–647, § 1011(k)(2)(B), struck out ‘‘amounts held by the trust which are at- tributable to employer contributions made pursuant to the employee’s election’’ before ‘‘may not be’’. Pub. L. 100–647, § 1011(k)(1)(A), added subcl. (II), redes- ignated former subcls. (V) and (VI) as (III) and (IV), re- spectively, and struck out former subcls. (II) to (IV) which read as follows: ‘‘(II) termination of the plan without establishment of a successor plan, ‘‘(III) the date of the sale by a corporation of substan- tially all of the assets (within the meaning of section 409(d)(2)) used by such corporation in a trade or busi- ness of such corporation with respect to an employee who continues employment with the corporation ac- quiring such assets, ‘‘(IV) the date of the sale by a corporation of such corporation’s interest in a subsidiary (within the mean- ing of section 409(d)(3)) with respect to an employee who continues employment with such subsidiary,’’. Subsec. (k)(2)(B)(ii). Pub. L. 100–647, § 1011(k)(2)(C), struck out ‘‘amounts’’ before ‘‘will not be’’. Subsec. (k)(3)(A). Pub. L. 100–647, § 1011(k)(3)(B), made technical correction to Pub. L. 99–514, § 1116(b)(4). See 1986 Amendment note below. Subsec. (k)(3)(A)(ii). Pub. L. 100–647, § 1011(k)(3)(A), in- serted ‘‘eligible’’ before ‘‘highly compensated employ- ees’’ in introductory text, in subcl. (I), and in two places in subcl. (II). Subsec. (k)(3)(C), (D). Pub. L. 100–647, § 1011(k)(4), (5), redesignated subpar. (C), relating to employer con- tributions, as (D), and substituted ‘‘meet’’ for ‘‘meets’’ in cl. (ii)(I). Subsec. (k)(4)(A). Pub. L. 100–647, § 1011(k)(6), struck out ‘‘provided by such employer’’ after ‘‘any other ben- efit’’. Subsec. (k)(4)(B). Pub. L. 100–647, § 6071(b)(2), as amended by Pub. L. 101–239, § 7816(l), substituted ‘‘rural cooperative plan’’ for ‘‘rural electric cooperative plan’’ in last sentence. Pub. L. 100–647, § 1011(k)(9), inserted at end ‘‘This sub- paragraph shall not apply to a rural electric coopera- tive plan.’’ Subsec. (k)(7). Pub. L. 100–647, § 6071(b)(1), substituted ‘‘Rural cooperative plan’’ for ‘‘Rural electric coopera- tive plan’’ in heading and amended text generally. Prior to amendment, text read as follows: ‘‘For pur- poses of this subsection— ‘‘(A) IN GENERAL.—The term ‘rural cooperative plan’ means any pension plan— ‘‘(i) which is a defined contribution plan (as de- fined in section 414(i)), and ‘‘(ii) which is established and maintained by a rural cooperative. ‘‘(B) RURAL COOPERATIVE DEFINED.—For purposes of subparagraph (A), the term ‘rural cooperative’ means— ‘‘(i) any organization which— ‘‘(I) is exempt from tax under this subtitle or which is a State or local government or political subdivision thereof (or agency or instrumentality thereof), and ‘‘(II) is engaged primarily in providing electric service on a mutual or cooperative basis, ‘‘(ii) any organization described in paragraph (4) or (6) of section 501(c) and at least 80 percent of the members of which are organizations described in clause (i), and Page 1216 TITLE 26—INTERNAL REVENUE CODE § 401 ‘‘(iii) an organization which is a national associa- tion of organizations described in clause (i) or (ii).’’ Pub. L. 100–647, § 1011(e)(3), amended par. (7) generally. Prior to amendment, par. (7) read as follows: ‘‘For pur- poses of this subsection, the term ‘rural electric coop- erative plan’ means any pension plan— ‘‘(A) which is a defined contribution plan (as de- fined in section 414(i)), and ‘‘(B) which is established and maintained by a rural electric cooperative (as defined in section 457(d)(9)(B)) or a national association of such rural electric co- operatives.’’ Subsec. (k)(8)(E), (F). Pub. L. 100–647, § 1011(k)(7), added subpar. (E) and redesignated former subpar. (E) as (F). Subsec. (k)(10). Pub. L. 100–647, § 1011(k)(1)(B), added par. (10). Subsec. (l)(2)(B)(i), (ii). Pub. L. 100–647, § 1011(g)(1)(A), substituted ‘‘contributed by the employer under’’ for ‘‘contributed under’’. Subsec. (l)(3)(A)(ii). Pub. L. 100–647, § 1011(g)(1)(B), in- serted ‘‘attributable to employer contributions’’ after ‘‘basis of benefits’’. Subsec. (l)(5)(C). Pub. L. 100–647, § 1011(g)(2), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: ‘‘The term ‘average annual compensa- tion’ means the greater of— ‘‘(i) the participant’s final average compensation (determined without regard to subparagraph (D)(ii)), or ‘‘(ii) the participant’s highest average annual com- pensation for any other period of at least 3 consecu- tive years.’’ Subsec. (l)(5)(E). Pub. L. 100–647, § 1011(g)(3), sub- stituted ‘‘the social security retirement age’’ for ‘‘age 65’’ in cl. (i) and in two places in cl. (ii), and added cl. (iii). Subsec. (m)(1). Pub. L. 100–647, § 1011(l)(1), substituted ‘‘A defined contribution plan’’ for ‘‘A plan’’. Subsec. (m)(2)(B). Pub. L. 100–647, § 1011(l)(3), sub- stituted ‘‘contributions to which this subsection ap- plies are made’’ for ‘‘such contributions are made’’. Subsec. (m)(3). Pub. L. 100–647, § 1011(l)(2), inserted at end ‘‘If matching contributions are taken into account for purposes of subsection (k)(3)(A)(ii) for any plan year, such contributions shall not be taken into ac- count under subparagraph (A) for such year.’’ Subsec. (m)(4)(A)(i), (ii). Pub. L. 100–647, § 1011(l)(4), substituted ‘‘a defined contribution plan’’ for ‘‘the plan’’. Subsec. (m)(4)(B). Pub. L. 100–647, § 1011(l)(5)(A), sub- stituted ‘‘section 402(g)(3)’’ for ‘‘section 402(g)(3)(A)’’. Subsec. (m)(6)(C). Pub. L. 100–647, § 1011(l)(6), sub- stituted ‘‘excess aggregate contributions’’ for ‘‘excess contributions’’ in heading. Subsec. (m)(7)(A). Pub. L. 100–647, § 1011(l)(7), sub- stituted ‘‘paragraph (6)’’ for ‘‘paragraph (8)’’. 1987—Subsec. (a)(29). Pub. L. 100–203 added par. (29). 1986—Subsec. (a)(4). Pub. L. 99–514, § 1114(b)(7), amend- ed par. (4) generally. Prior to amendment, par. (4) read as follows: ‘‘if the contributions or the benefits pro- vided under the plan do not discriminate in favor of employees who are— ‘‘(A) officers, ‘‘(B) shareholders, or ‘‘(C) highly compensated. For purposes of this paragraph, there shall be excluded from consideration employees described in section 410(b)(3)(A) and (C).’’ Subsec. (a)(5). Pub. L. 99–514, § 1111(b), amended par. (5) generally. Prior to amendment, par. (5) related to conditions which taken alone would not require a clas- sification to be considered discriminatory and means of determining the basic or regular rate of compensation of an employee and whether two or more plans of an employer satisfy requirements of par. (4) when consid- ered as a single plan. Subsec. (a)(8). Pub. L. 99–514, § 1119(a), substituted ‘‘defined benefit plan’’ for ‘‘pension plan’’. Subsec. (a)(9)(C). Pub. L. 99–514, § 1121(b), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: ‘‘For purposes of this paragraph, the term ‘required beginning date’ means April 1 of the cal- endar year following the later of— ‘‘(i) the calendar year in which the employee at- tains age 701⁄2, or ‘‘(ii) the calendar year in which the employee re- tires. Clause (ii) shall not apply in the case of an employee who is a 5-percent owner (as defined in section 416(i)(1)(B)) at any time during the 5-plan-year period ending in the calendar year in which the employee at- tains age 701⁄2. If the employee becomes a 5-percent owner during any subsequent plan year, the required beginning date shall be April 1 of the calendar year fol- lowing the calendar year in which such subsequent plan year ends.’’ Pub. L. 99–514, § 1852(a)(4)(A), substituted last 2 sen- tences for ‘‘Except as provided in section 409(d), clause (ii) shall not apply in the case of an employee who is a 5-percent owner (as defined in section 416) with re- spect to the plan year ending in the calendar year in which the employee attains 701⁄2.’’ Subsec. (a)(9)(G). Pub. L. 99–514, § 1852(a)(6), added subpar. (G). Subsec. (a)(11)(A)(i). Pub. L. 99–514, § 1898(b)(3)(A), sub- stituted ‘‘who does not die before the annuity starting date’’ for ‘‘who retires under the plan’’. Subsec. (a)(11)(B). Pub. L. 99–514, § 1898(b)(2)(A)(ii), in- serted at end ‘‘Clause (iii)(III) shall apply only with re- spect to the transferred assets (and income therefrom) if the plan separately accounts for such assets and any income therefrom.’’ Subsec. (a)(11)(B)(iii)(I). Pub. L. 99–514, § 1898(b)(7)(A), inserted ‘‘(reduced by any security interest held by the plan by reason of a loan outstanding to such partici- pant)’’. Pub. L. 99–514, § 1898(b)(13)(A), substituted ‘‘section 417(a)(2)’’ for ‘‘section 417(a)(2)(A)’’. Subsec. (a)(11)(B)(iii)(III). Pub. L. 99–514, § 1898(b)(2)(A)(i), inserted ‘‘(in a transfer after December 31, 1984)’’. Subsec. (a)(11)(D), (E). Pub. L. 99–514, § 1145(a), added subpar. (E) relating to exception for plans described in section 404(c) and redesignated former subpar. (D), re- lating to cross references, as (E). Pub. L. 99–514, § 1898(b)(14)(A), added subpar. (D) and redesignated former subpar. (D), relating to cross ref- erences, as (E). Subsec. (a)(17). Pub. L. 99–514, § 1106(d)(1), added par. (17). Subsec. (a)(20). Pub. L. 99–514, § 1852(b)(8), substituted ‘‘qualified total distribution described in section 402(a)(5)(E)(i)(I)’’ for ‘‘qualifying rollover distribution (determined as if section 402(a)(5)(D)(i) did not contain subclause (II) thereof) described in section 402(a)(5)(A)(i) or 403(a)(4)(A)(i)’’. Subsec. (a)(21). Pub. L. 99–514, § 1171(b)(5), struck out par. (21) which read as follows: ‘‘A trust forming part of a tax credit employee stock ownership plan shall not fail to be considered a permanent program merely be- cause employer contributions under the plan are deter- mined solely by reference to the amount of credit which would be allowable under section 41 if the em- ployer made the transfer described in section 41(c)(1)(B)’’. Subsec. (a)(22). Pub. L. 99–514, § 1899A(10), substituted ‘‘If’’ for ‘‘if’’. Pub. L. 99–514, § 1176(a), inserted at end ‘‘The require- ments of subsection (e) of section 409 shall not apply to any employees of an employer who are participants in any defined contribution plan established and main- tained by such employer if the stock of such employer is not publicly traded and the trade or business of such employer consists of publishing on a regular basis a newspaper for general circulation.’’ Subsec. (a)(23). Pub. L. 99–514, § 1174(c)(2)(A), amended par. (23) generally. Prior to amendment, par. (23) read as follows: ‘‘A stock bonus plan which otherwise meets the requirements of this section shall not be considered to fail to meet the requirements of this section because Page 1217 TITLE 26—INTERNAL REVENUE CODE § 401 it provides a cash distribution option to participants if that option meets the requirements of section 409(h), except that in applying section 409(h) for purposes of this paragraph, the term ‘employer securities’ shall in- clude any securities of the employer held by the plan.’’ Subsec. (a)(26). Pub. L. 99–514, § 1112(b), added par. (26). Subsec. (a)(27). Pub. L. 99–514, § 1136(a), added par. (27). Subsec. (a)(28). Pub. L. 99–514, § 1175(a)(1), added par. (28). Subsec. (c)(2)(A)(v). Pub. L. 99–514, § 1848(b), sub- stituted ‘‘section 404’’ for ‘‘sections 404 and 405(c)’’. Subsec. (c)(6). Pub. L. 99–514, § 1143(a), added par. (6). Subsec. (h). Pub. L. 99–514, § 1852(h)(1), substituted ‘‘key employee’’ for ‘‘5-percent owner’’ in two places in par. (6) and amended last sentence generally, sub- stituting ‘‘ ‘key employee’ means any employee, who’’ for ‘‘ ‘5-percent owner’ means any employee who,’’ and ‘‘key employee as defined in section 416(i)’’ for ‘‘5-per- cent owner (as defined in section 416(i)(1)(B))’’. Subsec. (k)(1), (2). Pub. L. 99–514, § 1879(g)(1), sub- stituted ‘‘, a pre-ERISA money purchase plan, or a rural electric cooperative plan’’ for ‘‘(or a pre-ERISA money purchase plan)’’. Subsec. (k)(2)(B). Pub. L. 99–514, § 1116(b)(1), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘under which amounts held by the trust which are attributable to employer contributions made pursuant to the employee’s election may not be distributable to participants or other beneficiaries ear- lier than upon retirement, death, disability, or separa- tion from service (or in the case of a profit sharing or stock bonus plan, hardship or the attainment of age 591⁄2) and will not be distributable merely by reason of the completion of a stated period of participation or the lapse of a fixed number of years; and’’. Subsec. (k)(2)(C). Pub. L. 99–514, § 1852(g)(3), sub- stituted ‘‘is nonforfeitable’’ for ‘‘are nonforfeitable’’. Subsec. (k)(2)(D). Pub. L. 99–514, § 1116(b)(2), added subpar. (D). Subsec. (k)(3). Pub. L. 99–514, § 1116(d)(3), which di- rected that the last sentence of subpar. (B) be struck out was executed by striking out the last sentence of par. (3) as the probable intent of Congress because sub- par. (B) is composed of only one sentence. Prior to being stricken, such last sentence read as follows: ‘‘For purposes of the preceding sentence, the compensation of any employee for a plan year shall be the amount of his compensation which is taken into account under the plan in calculating the contribution which may be made on his behalf for such plan year.’’ Subsec. (k)(3)(A). Pub. L. 99–514, § 1116(b)(4), as amend- ed by Pub. L. 100–647, § 1011(k)(3)(B), substituted ‘‘any highly compensated employee’’ for ‘‘an employee’’ in concluding provisions. Pub. L. 99–514, § 1852(g)(2), substituted ‘‘If an em- ployee is a participant under 2 or more cash or deferred arrangements of the employer, for purposes of deter- mining the deferral percentage with respect to such employee, all such cash or deferred arrangements shall be treated as 1 cash or deferred arrangement’’ for ‘‘The deferral percentage taken into account under this sub- paragraph for any employee who is a participant under 2 or more cash or deferred arrangements of the em- ployer shall be the sum of the deferral percentages for such employee under each of such arrangements’’. Subsec. (k)(3)(A)(i). Pub. L. 99–514, § 1112(d)(1), struck out ‘‘subparagraph (A) or (B) of’’ before ‘‘section 410(b)(1)’’. Subsec. (k)(3)(A)(ii). Pub. L. 99–514, § 1116(c)(2), sub- stituted ‘‘paragraph (5)’’ for ‘‘paragraph (4)’’. Pub. L. 99–514, § 1116(a), substituted ‘‘1.25’’ for ‘‘1.5’’ in subcl. (I), and ‘‘2 percentage points’’ for ‘‘3 percentage points’’ and ‘‘2’’ for ‘‘2.5’’ in subcl. (II). Subsec. (k)(3)(C). Pub. L. 99–514, § 1852(g)(1), added subpar. (C) relating to treatment of cash or deferred ar- rangements. Pub. L. 99–514, § 1116(e), added subpar. (C) relating to employer contributions. Subsec. (k)(4). Pub. L. 99–514, § 1116(b)(3), added par. (4). Former par. (4) redesignated (5). Subsec. (k)(5). Pub. L. 99–514, § 1116(b)(3), (d)(1), redes- ignated former par. (4) as (5) and substituted ‘‘the term ‘highly compensated employee’ has the meaning given such term by section 414(q)’’ for ‘‘the term ‘highly com- pensated employee’ means any employee who is more highly compensated than two-thirds of all eligible em- ployees, taking into account only compensation which is considered in applying paragraph (3)’’. Former par. (5) redesignated (6). Subsec. (k)(6). Pub. L. 99–514, § 1116(b)(3), redesignated former par. (5) as (6). Former par. (6) redesignated (7). Pub. L. 99–514, § 1879(g)(2), added par. (6). Subsec. (k)(7). Pub. L. 99–514, § 1116(b)(3), redesignated former par. (6) as (7). Subsec. (k)(8). Pub. L. 99–514, § 1116(c)(1), added par. (8). Subsec. (k)(9). Pub. L. 99–514, § 1116(d)(2), added par. (9). Subsec. (l). Pub. L. 99–514, § 1111(a), amended subsec. (l) generally, substituting provisions relating to per- mitted disparity in plan contributions or benefits for provisions relating to nondiscriminatory coordination of defined contribution plans with OASDI. Subsec. (m). Pub. L. 99–514, § 1117(a), added subsec. (m) and redesignated former subsec. (m) as (n). Pub. L. 99–514, § 1898(c)(3), added subsec. (m). Subsec. (n). Pub. L. 99–514, § 1117(a), redesignated former subsec. (m) as (n). Former subsec. (n) redesig- nated (o). Pub. L. 99–514, § 1898(c)(3), redesignated subsec. (o) as (n). Subsec. (o). Pub. L. 99–514, § 1117(a), redesignated former subsec. (n) as (o). Pub. L. 99–514, § 1898(c)(3), redesignated subsec. (o) as (n). 1984—Subsec. (a)(9). Pub. L. 98–369, § 521(a)(1), amend- ed par. (9) generally, redesignating existing provisions as subpar. (A) and in subpar. (A) as so redesignated struck out ‘‘In the case of a plan which provides con- tributions or benefits for employees some or all of whom are employees within the meaning of subsection (c)(1)’’ before ‘‘a trust forming part of such plan’’, sub- stituted ‘‘the plan provides that the entire interest of each employee—’’ for ‘‘, under the plan, the entire in- terest of each employee—’’, redesignated subpars. (A) and (B) as cls. (i) and (ii), respectively, in cl. (i) as so redesignated substituted provisions stating that a qualified plan provides that the entire interest will be distributed to the employee not later than the begin- ning date for former provisions which provided alter- native dates for providing interest, in cl. (ii) as so re- designated substituted alternate distribution dates to be set in accordance with regulations for former provi- sions stating that a qualified plan shall be distributed not later than the taxable year in which the taxpayer attains age 701⁄2, and struck out the par. following cl. (ii) which provided ‘‘A trust shall not be disqualified under this paragraph by reason of distributions under a designation, prior to the date of the enactment of this paragraph, by any employee under the plan of which such trust is a part, of a method of distribution which does not meet the terms of the preceding sentence.’’, and added subpars. (B) to (F). Pub. L. 98–369, § 521(a)(2), repealed amendment made by Pub. L. 97–248, § 242(a). See 1982 Amendment note below. Subsec. (a)(10)(B)(iii). Pub. L. 98–369, § 524(d)(1), added cl. (iii). Subsec. (a)(11). Pub. L. 98–397, § 203(a), amended par. (11) generally, inserting provisions relating to pre- retirement survivor annuities, and substituting present four subpars. for former eight subpars. Subsec. (a)(13). Pub. L. 98–397, § 204(a), designated ex- isting provisions as subpar. (A), corrected the margin of subpar. (A), and added subpar. (B). Subsec. (a)(21). Pub. L. 98–369, § 474(r)(13), substituted provisions relating to the amount of the credit which would be allowable under section 41 if the employer made the transfer described in section 41(c)(1)(B) for former provisions which had related to the amount of Page 1218 TITLE 26—INTERNAL REVENUE CODE § 401 credit which would be allowable under section 46(a) if the employer made the transfer described in section 48(n)(1) or under section 44G if the employer made the transfer described in section 44G(c)(1)(B). Subsec. (a)(22). Pub. L. 98–369, § 491(e)(4), substituted ‘‘section 409’’ for ‘‘section 409A’’. Subsec. (a)(23). Pub. L. 98–369, § 491(e)(5), substituted ‘‘section 409(h)’’ for ‘‘section 409A(h)’’ in two places. Subsec. (a)(24). Pub. L. 98–369, § 211(b)(5), substituted ‘‘section 818(a)(6)’’ for ‘‘section 805(d)(6)’’. Subsec. (a)(25). Pub. L. 98–397, § 301(b), added par. (25). Subsec. (e). Pub. L. 98–369, § 713(d)(3), repealed subsec. (e) which related to contributions for premiums on an- nuity, etc., contracts. Subsec. (f)(2). Pub. L. 98–369, § 713(c)(2)(A), substituted ‘‘(as defined in section 408(n))’’ for ‘‘(as defined in sub- section (d)(1))’’. Subsec. (h)(6). Pub. L. 98–369, § 528(b), added par. (6). Subsec. (k)(1), (2). Pub. L. 98–369, § 527(b)(1), inserted ‘‘(or a pre-ERISA money purchase plan)’’. Subsec. (k)(2)(B). Pub. L. 98–369, § 527(b)(3), sub- stituted ‘‘(or in the case of a profit sharing or stock bonus plan, hardship or the attainment of age 591⁄2)’’ for ‘‘, hardship or the attainment of age 591⁄2,’’. Subsec. (k)(3)(A). Pub. L. 98–369, § 527(a), struck out ‘‘qualified’’ before ‘‘cash or deferred arrangement’’, substituted ‘‘shall not be treated as a qualified cash or deferred arrangement unless’’ for ‘‘shall be considered to satisfy the requirements of subsection (a)(4), with re- spect to the amount of contributions, and of subpara- graph (B) of section 410(b)(1) for a plan year if’’, des- ignated provisions beginning ‘‘those employees’’ and ending ‘‘section 401(b)(1)’’ as cl. (i) and text following as cl. (ii), redesignated former cls. (i) and (ii) as subcls. (I) and (II) and inserted text following subcl. (II). Subsec. (k)(5). Pub. L. 98–369, § 527(b)(2), added par. (5). 1983—Subsec. (a)(21). Pub. L. 97–448, § 103(g)(2)(A), des- ignated part of existing provisions as subpar. (A) and added subpar. (B). Subsec. (c)(2)(A)(vi). Pub. L. 98–21 added cl. (vi). Subsec. (d)(2). Pub. L. 97–448, § 306(a)(12), substituted ‘‘paragraph (1)(B)’’ for ‘‘paragraph (9)(B)’’. Subsec. (d)(5). Pub. L. 97–448, § 103(c)(10)(A), sub- stituted ‘‘Subparagraphs (A) and (B) shall not apply to contributions described in subsection (e), and shall not apply to any deductible employee contribution (as de- fined in section 72(o)(5))’’ for ‘‘Subparagraphs (A) and (B) do not apply to contributions described in sub- section (e)’’ in second sentence. Subsec. (j)(3). Pub. L. 97–448, § 103(d)(2), substituted ‘‘under subparagraph (A) of paragraph (2) shall be treat- ed as beginning a new period of plan participation with respect only to such change’’ for ‘‘under subparagraph (A) of subsection (j)(2) shall be treated as beginning a new period of plan participation’’ in last sentence. 1982—Subsec. (a)(9). Pub. L. 97–248, § 242(a), which was repealed by Pub. L. 98–369, § 521(a)(2), had amended par. (9) generally, redesignating existing provisions as sub- par. (A), in subpar. (A), as so redesignated, struck out preliminary provision which limited the application of this paragraph to plans providing contributions or ben- efits for employees some or all of whom were employ- ees within the meaning of subsec. (c)(1), redesignated former subpars. (A) and (B) as cls. (i) and (ii) of subpar. (A), in cl. (i), as so redesignated, substituted reference to a key employee who is a participant in a top-heavy plan for former reference to owner-employees (within the meaning of subsec. (c)(3)), redesignated former cls. (i) and (ii) of subpar. (B) as subcls. (I) and (II) of cl. (ii), struck out former provision that a trust would not be disqualified under this paragraph by reason of distribu- tions under a designation, prior to the date of the en- actment of this paragraph, by any employee under the plan of which such trust was a part, of a method of dis- tribution which did not meet the terms of this para- graph, and adding subpar. (B). Subsec. (a)(10). Pub. L. 97–248, § 237(e)(1), amended par. (10) generally, redesignating subpar. (B) as (A) and striking out former subpar. (A) relating to qualified trust as a trust forming part of such plan, for provi- sions relating to discriminatory plans with respect to nonapplicability of paragraph (3), the first and second sentences of paragraph (5) and section 410 of this title. Subsec. (a)(10)(B). Pub. L. 97–248, § 240(b), added sub- par. (B). Subsec. (a)(17), (18). Pub. L. 97–248, § 237(b), struck out pars. (17) and (18) which related, respectively, to a plan which provides contributions or benefits for employees some or all of whom are employees within the meaning of subsection (c)(1), or are shareholder-employees with- in the meaning of section 1379(d), and a trust which is part of a plan providing a defined benefit for employees some or all of whom are employees within the meaning of subsection (c)(1), or are shareholder-employees with- in the meaning of section 1379(d). Subsec. (a)(24). Pub. L. 97–248 added par. (24). Subsec. (c)(1). Pub. L. 97–248, § 238(d)(1), amended par. (1) generally, substituting in heading ‘‘Self-employed individual treated as employee’’ for ‘‘Employee’’, add- ing subparagraph headings, and substituting provisions defining ‘‘employee’’ and ‘‘self-employed individual’’, for provisions defining ‘‘employee’’. Subsec. (c)(2)(A). Pub. L. 97–248, § 238(d)(2), added cl. (v). Subsec. (d). Pub. L. 97–248, § 237(a), redesignated pars. (9) to (11) as (1) to (3), respectively. Former pars. (1) to (7), which related to trusts created or organized before or after October 10, 1962, contributions under the plan, benefits under the plan for employees, contributions or benefits under the plan, limitations pursuant to the plan, applicability of requirements of subsec. (a)(4) of this section, and distributions under the plan, respec- tively, were struck out. Subsec. (j). Pub. L. 97–248, § 238(b), struck out subsec. (j) which related to general requirements, regulation guidelines, applicable percentage, certain contributions and benefits not taken into account, definitions, and special rules with respect to defined benefit plans pro- viding benefits for self-employed individuals and share- holder-employees. Subsecs. (l), (o). Pub. L. 97–248, § 249(a), added subsec. (l) and redesignated former subsec. (l) as (o). 1981—Subsec. (a)(17). Pub. L. 97–34, § 312(b)(1), des- ignated provision relating to the annual compensation of each employee as subpar. (A), and in subpar. (A) as so designated, substituted ‘‘$200,000’’ for ‘‘$100,000’’, and added subpar. (B). Subsec. (a)(22). Pub. L. 97–34, § 338(a), inserted ‘‘(other than a profit-sharing plan)’’ and substituted ‘‘if’’ for ‘‘If’’ and ‘‘such plan’’ for ‘‘said plan’’. Subsec. (a)(23). Pub. L. 97–34, § 335, substituted ‘‘409A(h), except that in applying section 409A(h) for purposes of this paragraph, the term ‘employer securi- ties’ shall include any securities of the employer held by the plan’’ for ‘‘409A(h)(2)’’. Subsec. (d)(4). Pub. L. 97–34, § 312(e)(2), inserted provi- sion making subpar. (B) inapplicable to any distribu- tion to which section 72(m)(9) applies. Subsec. (d)(5). Pub. L. 97–34, § 314(a)(1), inserted provi- sion making subpar. (C) inapplicable to a distribution on account of the termination of the plan. Subsec. (e). Pub. L. 97–34, § 312(c)(2), substituted ‘‘for such taxable year exceeds $15,000’’ for ‘‘for all such years exceeds $7,500’’. Subsec. (j). Pub. L. 97–34, § 312(c)(3), (4), substituted in par. (2)(A) ‘‘$100,000’’ for ‘‘$50,000’’ and in par. (3) in- serted provision that for purposes of this paragraph, a change in the annual compensation taken into account under subpar. (A) of subsec. (j)(2) be treated as begin- ning a new period of plan participation. 1980—Subsec. (a)(2). Pub. L. 96–364, §§ 208(e), 410(b), in- serted provisions relating to applicability to multiem- ployer plans and return of contributions made by a mistake of law or fact, or return of withdrawal liability payment. Subsec. (a)(4). Pub. L. 96–605, § 225(b)(1), substituted ‘‘section 410(b)(3)(A)’’ for ‘‘section 410(b)(2)(A)’’. Subsec. (a)(12). Pub. L. 96–364, § 208(a), substituted provisions relating to applicability to multiemployer plans subject to title IV of the Employee Retirement Page 1219 TITLE 26—INTERNAL REVENUE CODE § 401 Income Security Act of 1974 of provisions of preceding sentence, for provisions relating to applicability of paragraph to multiemployer plans to extent deter- mined by Corporation. Subsec. (a)(20). Pub. L. 96–222, § 101(a)(14)(E)(iii), sub- stituted ‘‘makes a qualifying rollover distribution (de- termined as if section 402(a)(5)(D)(i) did not contain subclause (II) thereof) described in section 402(a)(5)(A)(i) or 403(a)(4)(A)(i)’’ for ‘‘makes a payment or distribution described in section 402(a)(5)(i) or 403(a)(4)(i)’’. Subsec. (a)(21). Pub. L. 96–222, § 101(a)(7)(L)(i)(V), sub- stituted ‘‘a tax credit employee stock ownership plan’’ for ‘‘an ESOP’’. Subsec. (a)(22)(B). Pub. L. 96–222, § 101(a)(9), sub- stituted ‘‘are securities’’ for ‘‘as securities’’. Subsec. (a)(23). Pub. L. 96–605, § 221(a), added par. (23). Subsec. (d)(3)(B). Pub. L. 96–605, § 225(b)(2), substituted in cl. (i) ‘‘section 410(b)(3)(A)’’ for ‘‘section 410(b)(2)(A)’’ and in cl. (ii) ‘‘section 410(b)(3)(C)’’ for ‘‘section 410(b)(2)(C)’’. 1978—Subsec. (a)(5). Pub. L. 95–600, § 152(e), inserted provision that for purposes of determining whether one or more plans of the employer satisfy the requirements of section 410(b)(4), an employer may take into account all simplified employee pensions to which only the em- ployer contributes. Subsec. (a)(21). Pub. L. 95–600, § 141(f)(3), substituted ‘‘ESOP’’ for ‘‘employee stock option plan which satis- fies the requirements of section 301(d) of the Tax Re- duction Act of 1975’’ and ‘‘section 48(n)(1)’’ for ‘‘sub- section (d)(6) or (e)(3) of section 301 of the Tax Reduc- tion Act of 1975’’. Subsec. (a)(22). Pub. L. 95–600, § 143(a), added par. (22). Subsecs. (k), (l). Pub. L. 95–600, § 135(a), added subsec. (k) and redesignated former subsec. (k) as (l). 1976—Subsec. (a). Pub. L. 94–455, §§ 803(b)(2), 1901(a)(56), 1906(b)(13)(A), struck out ‘‘or his delegate’’ after ‘‘Secretary’’ in pars. (5), (11), and (14), substituted references to Sept. 2, 1974, for references to the enact- ment of the Employee Retirement Income Security Act of 1974 in pars. (12), (13), (15), and (19), added par. (21), and inserted reference to par. (20) in provisions fol- lowing par. (21), such addition of reference to par. (20) duplicating amendment by Pub. L. 94–267, § 1(c)(2). Pub. L. 94–267, § 1(c)(2), substituted ‘‘(19), and (20)’’ for ‘‘and (19)’’. Subsec. (a)(20). Pub. L. 94–267, § 1(c)(1), added par. (20). Subsecs. (b), (c), (d). Pub. L. 94–455, § 1906(b)(13)(A), struck out ‘‘or his delegate’’ after ‘‘Secretary’’. Subsec. (f). Pub. L. 94–455, § 1505(b), inserted reference to contracts (other than life, health, or accident, prop- erty, casualty, or liability insurance contracts) issued by an insurance company qualified to do a business in a State and struck out ‘‘or his delegate’’ after ‘‘Sec- retary’’. Subsecs. (h), (i), (j). Pub. L. 94–455, § 1906(b)(13)(A), struck out ‘‘or his delegate’’ after ‘‘Secretary’’. 1974—Subsec. (a). Pub. L. 93–406, § 1021(a)(2), inserted provision that paragraphs (11), (12), (13), (14), (15), and (19) shall apply only in the case of a plan to which sec- tion 411 (relating to minimum vesting standards) ap- plies without regard to subsection (e)(2) of this section. Subsec. (a)(3). Pub. L. 93–406, § 1016(a)(2)(A), sub- stituted provisions referring simply to a plan of which the trust is a part and the satisfaction by that plan of the requirements of section 410 (relating to minimum participation standards) for provisions referring to a trust, trusts, or trust or trusts and annuity plan or plans designated by the employer as constituting parts of a plan intended to qualify under subsec. (a) and spell- ing out the requisite coverage of the plan. Subsec. (a)(4). Pub. L. 93–406, § 1022(a), struck out pro- visions referring to persons whose principal duties con- sist in supervising the work of other employees and in- serted provisions directing the exclusion from consider- ation of employees described in section 410(b)(2) (A) and (C). Subsec. (a)(5). Pub. L. 93–406, §§ 1012(b), 1016(a)(2)(B), inserted provisions covering the determination of whether two or more plans of an employer satisfy the requirements of par. (4) when considered as a single plan and substituted ‘‘shall not be considered discrimi- natory within the meaning of paragraph (4) of section 410(b) (without regard to paragraph (1)(A) thereof)’’ for ‘‘shall not be considered discriminatory within the meaning of paragraph (3)(B) or (4)’’. Subsec. (a)(7). Pub. L. 93–406, § 1016(a)(2)(C), sub- stituted provisions referring simply to the satisfaction by the plan of which a trust is a part of the require- ments of section 411 (relating to minimum vesting standards) for provisions spelling out in detail the con- ditions which the plan had to satisfy in order that the trust forming part of that plan constitute a qualified trust under this section. Subsec. (a)(10)(A). Pub. L. 93–406, §§ 1022(b)(1), 2001(e)(4), inserted reference to section 410 in provisions preceding cl. (i) and substituted ‘‘subsection (e)’’ for ‘‘subsection (e)(3)(A)’’ in cl. (ii). Subsec. (a)(11). Pub. L. 93–406, § 1021(a)(1), added par. (11). Subsec. (a)(12). Pub. L. 93–406, § 1021(b), added par. (12). Subsec. (a)(13). Pub. L. 93–406, § 1021(c), added par. (13). Subsec. (a)(14). Pub. L. 93–406, § 1021(d), added par. (14). Subsec. (a)(15). Pub. L. 93–406, § 1021(e), added par. (15). Subsec. (a)(16). Pub. L. 93–406, § 2004(a)(1), added par. (16). Subsec. (a)(17). Pub. L. 93–406, § 2001(c), added par. (17). Subsec. (a)(18). Pub. L. 93–406, § 2001(d)(1), added par. (18). Subsec. (a)(19). Pub. L. 93–406, § 1021(f), added par. (19). Subsec. (b). Pub. L. 93–406, § 1023, substituted ref- erence to the requirements of subsection (a) for the pe- riod beginning with the date on which a stock bonus, pension, profit-sharing, or annuity plan was put into ef- fect, or for the period beginning with the earlier of the date on which there was adopted or put into effect any amendment which caused the plan to fail to satisfy such requirements, and ending with the time prescribed by law for filing the return of the employer for his tax- able year in which such plan or amendment was adopt- ed (including extensions thereof) or such later time as the Secretary or his delegate may designate for ref- erence to the requirements of paragraphs (3), (4), (5), and (6) of subsection (a) for the period beginning with the date on which a stock bonus, pension, profit-shar- ing, or annuity plan was put into effect and ending with the 15th day of the third month following the close of the taxable year of the employer in which the plan was put in effect. Subsec. (d)(1). Pub. L. 93–406, § 1022(c), (f), substituted ‘‘October 10, 1962’’ for ‘‘the date of the enactment of this subsection’’ and ‘‘assets thereof are held by a bank or other person who demonstrates to the satisfaction of the Secretary or his delegate that the manner in which he will administer the trust will be consistent with the requirements of this section. A trust shall not be dis- qualified under this paragraph merely because a person (including the employer) other than the trustee or cus- todian so administering the trust’’ for ‘‘trustee is a bank, but a person (including the employer) other than a bank’’ and inserted reference to an insured credit union (within the meaning of section 101(6) of the Fed- eral Credit Union Act) in definition of ‘‘bank’’. Subsec. (d)(3). Pub. L. 93–406, § 1022(b)(2), inserted ref- erence to the section 410(a)(3) definition of ‘‘years of service’’ and substituted reference to employees in- cluded in a unit of employees covered by a collective- bargaining agreement described in section 410(b)(2)(A) and employees who are nonresident aliens described in section 410(b)(2)(C) for reference to employees whose customary employment was for not more than 20 hours in any one week or was for not more than 5 months in any calendar year. Subsec. (d)(4)(B). Pub. L. 93–406, § 2001(h)(1), inserted ‘‘in excess of contributions made by an owner-employee as an employee’’ after ‘‘benefits’’. Subsec. (d)(5). Pub. L. 93–406, § 2001(e)(1), substituted ‘‘Subparagraphs (A) and (B) do not apply to contribu- tions described in subsection (e)’’ for ‘‘Subparagraphs Page 1220 TITLE 26—INTERNAL REVENUE CODE § 401 (A) and (B) shall not apply to any contribution which is not considered to be an excess contribution (as de- fined in subsection (e)(1)) by reason of the application of subsection (e)(3)’’. Subsec. (d)(8). Pub. L. 93–406, § 2001(e)(2), struck out par. (8) covering excess contributions. Subsec. (e). Pub. L. 93–406, § 2001(e)(3), struck out pars. (1) and (2) which defined and described the effect of ex- cess contributions, redesignated par. (3) as the entire subsec. (e) and in provisions as thus carried forward as the entire subsec. (e) substituted ‘‘$7,500’’ for ‘‘$2,500’’ and inserted references to section 4972(b). Subsec. (f). Pub. L. 93–406, § 1022(d), expanded provi- sions to cover annuity contracts. Subsecs. (j), (k). Pub. L. 93–406, § 2001(d)(2), added sub- sec. (j) and redesignated former subsec. (j) as (k). 1971—Subsec. (i). Pub. L. 91–691 struck out ‘‘multi-em- ployer’’ before ‘‘pension plans’’ in heading, and sub- stituted ‘‘one or more employers’’ for ‘‘two or more em- ployers who are not related (determined under regula- tions prescribed by the Secretary or his delegate)’’ in par. (1). 1966—Subsec. (a)(10)(A)(ii). Pub. L. 89–809, § 204(b)(1)(A), struck out ‘‘(determined without regard to section 404(a)(10))’’ after ‘‘deducted under section 404’’. Subsec. (c)(2)(A). Pub. L. 89–809, § 204(c), struck out ‘‘to the extent that such net earnings constitute earned income (as defined in section 911(b) but determined with the application of subparagraph (B))’’ after ‘‘The term ‘earned income’ means the net earnings from self- employment (as defined in section 1402(a))’’, added cl. (i) and redesignated former cls. (i) to (ii) as (ii) to (iv), respectively, and struck out references to section 911(b) and subparagraph (B), as in effect for a taxable year be- ginning on January 1, 1963, in text following cl. (iv). Subsec. (c)(2)(B). Pub. L. 89–809, § 204(c), struck out subpar. (B) relating to earned income when both per- sonal services and capital are material income-pro- ducing factors. See subsec. (c)(2)(A)(i). Subsec. (c)(2)(C). Pub. L. 89–809, § 205(a), added subpar. (C). Subsecs. (d)(5)(A), (B), (d)(6)(A), (e)(1)(A), (B)(i), (3). Pub. L. 89–809, § 204(b)(1)(B) to (E), struck out ‘‘(deter- mined without regard to section 404(a)(10))’’ wherever appearing. 1965—Subsec. (d)(4)(B). Pub. L. 89–97 substituted ‘‘sec- tion 72(m)(7)’’ for ‘‘section 213(g)(3)’’. 1964—Subsecs. (i), (j). Pub. L. 88–272 added subsec. (i) and redesignated former subsec. (i) as (j). 1962—Subsec. (a)(5). Pub. L. 87–792, § 2(1), inserted pro- visions defining total compensation for purposes of par. (5) and par. (10) of this subsection. Subsec. (a)(7) to (10). Pub. L. 87–792, § 2(2), added pars. (7) to (10). Subsecs. (c) to (g). Pub. L. 87–792, § 2(3), added subsecs. (c) to (g). Former subsec. (c) redesignated (h). Subsec. (h). Pub. L. 87–863 added subsec. (h). Former subsec. (h) redesignated (i). Pub. L. 87–792, § 2(3), redesignated former subsec. (c) as (h). Subsec. (i). Pub. L. 87–863 redesignated former subsec. (h) as (i). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2022 AMENDMENT Pub. L. 117–328, div. T, title I, § 107(e), Dec. 29, 2022, 136 Stat. 5289, provided that: ‘‘The amendments made by this section [amending this section and section 408 of this title] shall apply to distributions required to be made after December 31, 2022, with respect to individ- uals who attain age 72 after such date.’’ Pub. L. 117–328, div. T, title I, § 110(h), Dec. 29, 2022, 136 Stat. 5293, provided that: ‘‘The amendments made by this section [amending this section and sections 403, 408, and 457 of this title] shall apply to contributions made for plan years beginning after December 31, 2023.’’ Pub. L. 117–328, div. T, title I, § 113(e), Dec. 29, 2022, 136 Stat. 5296, provided that: ‘‘The amendments made by this section [amending this section and sections 403 and 4975 of this title and section 1108 of Title 29, Labor] shall apply with respect to plan years beginning after the date of enactment of this Act [Dec. 29, 2022].’’ Pub. L. 117–328, div. T, title I, § 116(c), Dec. 29, 2022, 136 Stat. 5299, provided that: ‘‘The amendments made by this section [amending this section and section 408 of this title] shall apply to taxable years beginning after December 31, 2023.’’ Pub. L. 117–328, div. T, title I, § 117(h), Dec. 29, 2022, 136 Stat. 5301, provided that: ‘‘The amendments made by this section [amending this section and sections 408 and 414 of this title] shall apply to taxable years beginning after December 31, 2023.’’ Pub. L. 117–328, div. T, title I, § 121(d), Dec. 29, 2022, 136 Stat. 5311, provided that: ‘‘The amendments made by this section [amending this section and sections 403 and 416 of this title] shall apply to plan years beginning after December 31, 2023.’’ Pub. L. 117–328, div. T, title I, § 123(b), Dec. 29, 2022, 136 Stat. 5314, provided that: ‘‘The amendments made by this section [amending this section] shall apply to plan years beginning after December 31, 2027.’’ Pub. L. 117–328, div. T, title I, § 125(f), Dec. 29, 2022, 136 Stat. 5316, provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), the amendments made by this section [amending this section, sections 403 and 416 of this title and sections 1052 and 1053 of Title 29, Labor, and provisions set out as a note under this section] shall apply to plan years beginning after December 31, 2024. ‘‘(2) SUBSECTION (d) AND (e).—The amendments made by subsections (d) and (e) [amending section 416 of this title and provisions set out as a note under this sec- tion] shall take effect as if included in the enactment of section 112 of the Setting Every Community Up for Retirement Enhancement Act of 2019 [div. O of Pub. L. 116–94].’’ Pub. L. 117–328, div. T, title II, § 201(b), Dec. 29, 2022, 136 Stat. 5331, provided that: ‘‘This section [amending this section] shall apply to calendar years ending after the date of the enactment of this Act [Dec. 29, 2022].’’ Pub. L. 117–328, div. T, title III, § 304(b), Dec. 29, 2022, 136 Stat. 5341, provided that: ‘‘The amendments made by this section [amending this section, section 411 of this title, and section 1053 of Title 29, Labor] shall apply to distributions made after December 31, 2023.’’ Pub. L. 117–328, div. T, title III, § 312(d), Dec. 29, 2022, 136 Stat. 5348, provided that: ‘‘The amendments made by this section [amending this section and sections 403 and 457 of this title] shall apply to plan years beginning after the date of the enactment of this Act [Dec. 29, 2022].’’ Pub. L. 117–328, div. T, title III, § 316(b), Dec. 29, 2022, 136 Stat. 5352, provided that: ‘‘The amendments made by this section [amending this section] shall apply to plan years beginning after December 31, 2023.’’ Pub. L. 117–328, div. T, title III, § 317(b), Dec. 29, 2022, 136 Stat. 5352, provided that: ‘‘The amendment made by this section [amending this section] shall apply to plan years beginning after the date of the enactment of this Act [Dec. 29, 2022].’’ Pub. L. 117–328, div. T, title III, § 327(c), Dec. 29, 2022, 136 Stat. 5360, provided that: ‘‘The amendments made by this section [amending this section] shall apply to calendar years beginning after December 31, 2023.’’ Amendment by section 334(a), (b)(1) of Pub. L. 117–328 applicable to distributions made after the date which is 3 years after Dec. 29, 2022, see section 334(e) of Pub. L. 117–328, set out as a note under section 72 of this title. Pub. L. 117–328, div. T, title III, § 337(c), Dec. 29, 2022, 136 Stat. 5373, provided that: ‘‘The amendments made by this section [amending this section] shall apply to calendar years beginning after the date of the enact- ment of this Act [Dec. 29, 2022].’’ Amendment by section 401(a)(1), (2), (b)(2), (3) of Pub. L. 117–328 effective as if included in the section of div. O of Pub. L. 116–94 to which the amendment relates, see section 401(c) of Pub. L. 117–328, set out as a note under section 72 of this title. Page 1221 TITLE 26—INTERNAL REVENUE CODE § 401 EFFECTIVE DATE OF 2020 AMENDMENT Pub. L. 116–260, div. EE, title II, § 208(b), Dec. 27, 2020, 134 Stat. 3066, provided that: ‘‘The amendment made by this section [amending this section] shall apply to dis- tributions made before, on, or after the date of the en- actment of this Act [Dec. 27, 2020].’’ Pub. L. 116–136, div. A, title II, § 2203(c), Mar. 27, 2020, 134 Stat. 344, as amended by Pub. L. 117–328, div. T, title V, § 501(c)(2)(B), Dec. 29, 2022, 136 Stat. 5389, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [amending this section and section 402 of this title] shall apply for calendar years beginning after Decem- ber 31, 2019. ‘‘(2) PROVISIONS RELATING TO PLAN OR CONTRACT AMENDMENTS.— ‘‘(A) IN GENERAL.—If this paragraph applies to any plan or contract amendment— ‘‘(i) such plan or contract shall not fail to be treated as being operated in accordance with the terms of the plan during the period described in subparagraph (B)(ii) solely because the plan oper- ates in accordance with this section, and ‘‘(ii) except as provided by the Secretary of the Treasury (or the Secretary’s delegate), such plan or contract shall not fail to meet the requirements of section 411(d)(6) of the Internal Revenue Code of 1986 and section 204(g) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1054(g)] by reason of such amendment. ‘‘(B) AMENDMENTS TO WHICH PARAGRAPH APPLIES.— ‘‘(i) IN GENERAL.—This paragraph shall apply to any amendment to any plan or annuity contract which— ‘‘(I) is made pursuant to the amendments made by this section, and ‘‘(II) is made on or before the last day of the first plan year beginning on or after January 1, 2025. In the case of a governmental plan, subclause (II) shall be applied by substituting ‘2027’ for ‘2025’. ‘‘(ii) CONDITIONS.—This paragraph shall not apply to any amendment unless during the period begin- ning on the effective date of the amendment and ending on December 31, 2020, the plan or contract is operated as if such plan or contract amendment were in effect.’’ EFFECTIVE DATE OF 2019 AMENDMENT Pub. L. 116–94, div. M, § 104(c), Dec. 20, 2019, 133 Stat. 3095, provided that: ‘‘The amendments made by this section [amending this section and section 457 of this title] shall apply to plan years beginning after Decem- ber 31, 2019.’’ Pub. L. 116–94, div. O, title I, § 102(b), Dec. 20, 2019, 133 Stat. 3146, provided that: ‘‘The amendments made by this section [amending this section] shall apply to plan years beginning after December 31, 2019.’’ Pub. L. 116–94, div. O, title I, § 103(d), Dec. 20, 2019, 133 Stat. 3147, provided that: ‘‘The amendments made by this section [amending this section] shall apply to plan years beginning after December 31, 2019.’’ Pub. L. 116–94, div. O, title I, § 109(e), Dec. 20, 2019, 133 Stat. 3152, provided that: ‘‘The amendments made by this section [amending this section and sections 403 and 457 of this title] shall apply to plan years beginning after December 31, 2019.’’ Pub. L. 116–94, div. O, title I, § 112(b), Dec. 20, 2019, 133 Stat. 3154, as amended by Pub. L. 117–328, div. T, title I, § 125(d), Dec. 29, 2022, 136 Stat. 5315, provided that: ‘‘The amendments made by this section [amending this section] shall apply to plan years beginning after De- cember 31, 2020, except that, for purposes of paragraphs (2)(D)(ii) and (15)(B)(iii) of section 401(k) of the Internal Revenue Code of 1986 (as added by such amendments), 12-month periods beginning before January 1, 2021, shall not be taken into account.’’ Pub. L. 116–94, div. O, title I, § 114(d), Dec. 20, 2019, 133 Stat. 3156, provided that: ‘‘The amendments made by this section [amending this section and section 408 of this title] shall apply to distributions required to be made after December 31, 2019, with respect to individ- uals who attain age 701⁄2 after such date.’’ Pub. L. 116–94, div. O, title II, § 201(b), Dec. 20, 2019, 133 Stat. 3162, provided that: ‘‘The amendments made by this section [amending this section] shall apply to plans adopted for taxable years beginning after Decem- ber 31, 2019.’’ Pub. L. 116–94, div. O, title II, § 205(c), Dec. 20, 2019, 133 Stat. 3173, provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), the amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Dec. 20, 2019], without regard to whether any plan modifications referred to in such amendments are adopted or effective before, on, or after such date of enactment. ‘‘(2) SPECIAL RULES.— ‘‘(A) ELECTION OF EARLIER APPLICATION.—At the election of the plan sponsor, the amendments made by this section shall apply to plan years beginning after December 31, 2013. ‘‘(B) CLOSED CLASSES OF PARTICIPANTS.—For pur- poses of paragraphs (1)(A)(iii), (1)(B)(iii)(IV), and (2)(A)(iv) of section 401(o) of the Internal Revenue Code of 1986 (as added by this section), a closed class of participants shall be treated as being closed before April 5, 2017, if the plan sponsor’s intention to create such closed class is reflected in formal written docu- ments and communicated to participants before such date. ‘‘(C) CERTAIN POST-ENACTMENT PLAN AMENDMENTS.— A plan shall not be treated as failing to be eligible for the application of section 401(o)(1)(A), 401(o)(1)(B)(iii), or 401(a)(26) of such Code (as added by this section) to such plan solely because in the case of— ‘‘(i) such section 401(o)(1)(A), the plan was amend- ed before the date of the enactment of this Act to eliminate 1 or more benefits, rights, or features, and is further amended after such date of enact- ment to provide such previously eliminated bene- fits, rights, or features to a closed class of partici- pants, or ‘‘(ii) such section 401(o)(1)(B)(iii) or section 401(a)(26), the plan was amended before the date of the enactment of this Act to cease all benefit ac- cruals, and is further amended after such date of enactment to provide benefit accruals to a closed class of participants. Any such section shall only apply if the plan other- wise meets the requirements of such section and in applying such section, the date the class of partici- pants is closed shall be the effective date of the later amendment.’’ Pub. L. 116–94, div. O, title IV, § 401(b), Dec. 20, 2019, 133 Stat. 3178, provided that: ‘‘(1) IN GENERAL.—Except as provided in this sub- section, the amendments made by this section [amend- ing this section] shall apply to distributions with re- spect to employees who die after December 31, 2019. ‘‘(2) COLLECTIVE BARGAINING EXCEPTION.—In the case of a plan maintained pursuant to 1 or more collective bargaining agreements between employee representa- tives and 1 or more employers ratified before the date of enactment of this Act [Dec. 20, 2019], the amend- ments made by this section shall apply to distributions with respect to employees who die in calendar years be- ginning after the earlier of— ‘‘(A) the later of— ‘‘(i) the date on which the last of such collective bargaining agreements terminates (determined without regard to any extension thereof agreed to on or after the date of the enactment of this Act), or ‘‘(ii) December 31, 2019, or ‘‘(B) December 31, 2021. For purposes of subparagraph (A)(i), any plan amend- ment made pursuant to a collective bargaining agree- ment relating to the plan which amends the plan solely Page 1222 TITLE 26—INTERNAL REVENUE CODE § 401 to conform to any requirement added by this section shall not be treated as a termination of such collective bargaining agreement. ‘‘(3) GOVERNMENTAL PLANS.—In the case of a govern- mental plan (as defined in section 414(d) of the Internal Revenue Code of 1986), paragraph (1) shall be applied by substituting ‘December 31, 2021’ for ‘December 31, 2019’. ‘‘(4) EXCEPTION FOR CERTAIN EXISTING ANNUITY CON- TRACTS.— ‘‘(A) IN GENERAL.—The amendments made by this section shall not apply to a qualified annuity which is a binding annuity contract in effect on the date of enactment of this Act and at all times thereafter. ‘‘(B) QUALIFIED ANNUITY.—For purposes of this para- graph, the term ‘qualified annuity’ means, with re- spect to an employee, an annuity— ‘‘(i) which is a commercial annuity (as defined in section 3405(e)(6) of the Internal Revenue Code of 1986); ‘‘(ii) under which the annuity payments are made over the life of the employee or over the joint lives of such employee and a designated beneficiary (or over a period not extending beyond the life expect- ancy of such employee or the joint life expectancy of such employee and a designated beneficiary) in accordance with the regulations described in sec- tion 401(a)(9)(A)(ii) of such Code (as in effect before such amendments) and which meets the other re- quirements of section 401(a)(9) of such Code (as so in effect) with respect to such payments; and ‘‘(iii) with respect to which— ‘‘(I) annuity payments to the employee have begun before the date of enactment of this Act, and the employee has made an irrevocable elec- tion before such date as to the method and amount of the annuity payments to the employee or any designated beneficiaries; or ‘‘(II) if subclause (I) does not apply, the em- ployee has made an irrevocable election before the date of enactment of this Act as to the meth- od and amount of the annuity payments to the employee or any designated beneficiaries. ‘‘(5) EXCEPTION FOR CERTAIN BENEFICIARIES.— ‘‘(A) IN GENERAL.—If an employee dies before the ef- fective date, then, in applying the amendments made by this section to such employee’s designated bene- ficiary who dies after such date— ‘‘(i) such amendments shall apply to any bene- ficiary of such designated beneficiary; and ‘‘(ii) the designated beneficiary shall be treated as an eligible designated beneficiary for purposes of applying section 401(a)(9)(H)(ii) of the Internal Rev- enue Code of 1986 (as in effect after such amend- ments). ‘‘(B) EFFECTIVE DATE.—For purposes of this para- graph, the term ‘effective date’ means the first day of the first calendar year to which the amendments made by this section apply to a plan with respect to employees dying on or after such date.’’ EFFECTIVE DATE OF 2018 AMENDMENT Pub. L. 115–123, div. D, title II, § 41114(c), Feb. 9, 2018, 132 Stat. 161, provided that: ‘‘The amendments made by this section [amending this section] shall apply to plan years beginning after December 31, 2018.’’ EFFECTIVE DATE OF 2014 AMENDMENT Amendment by Pub. L. 113–295 effective Dec. 19, 2014, subject to a savings provision, see section 221(b) of Pub. L. 113–295, set out as a note under section 1 of this title. Pub. L. 113–97, § 3, Apr. 7, 2014, 128 Stat. 1101, provided that: ‘‘Unless otherwise specified in this Act [see Ta- bles for classification], the provisions of this Act shall apply to years beginning after December 31, 2013.’’ EFFECTIVE DATE OF 2010 AMENDMENT Pub. L. 111–192, title II, § 202(c)(1), June 25, 2010, 124 Stat. 1299, provided that: ‘‘The amendment made by subsection (a) [amending sections 1021, 1023, 1053, 1054, 1056, 1057, 1103, 1108, 1301, 1303, 1310, 1362, 1371, and 1423 of Title 29, Labor, and section 106 of 1978 Reorg. Plan No. 4, set out in the Appendix to Title 5, Government Organization and Employees, and as a note under sec- tion 1001 of Title 29, enacting provisions set out as a note under this section, and amending provisions set out as a note under section 1021 of Title 29] shall take effect as if included in the Pension Protection Act of 2006 [Pub. L. 109–280].’’ EFFECTIVE DATE OF 2008 AMENDMENT Amendment by sections 101(d)(2)(A)–(C) and 109(a)–(b)(2) of Pub. L. 110–458 effective as if included in the provisions of Pub. L. 109–280 to which the amend- ment relates, except as otherwise provided, see section 112 of Pub. L. 110–458, set out as a note under section 72 of this title. Pub. L. 110–458, title II, § 201(c), Dec. 23, 2008, 122 Stat. 5117, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [amending this section and section 402 of this title] shall apply for calendar years beginning after Decem- ber 31, 2008. ‘‘(2) PROVISIONS RELATING TO PLAN OR CONTRACT AMENDMENTS.— ‘‘(A) IN GENERAL.—If this paragraph applies to any pension plan or contract amendment, such pension plan or contract shall not fail to be treated as being operated in accordance with the terms of the plan during the period described in subparagraph (B)(ii) solely because the plan operates in accordance with this section. ‘‘(B) AMENDMENTS TO WHICH PARAGRAPH APPLIES.— ‘‘(i) IN GENERAL.—This paragraph shall apply to any amendment to any pension plan or annuity contract which— ‘‘(I) is made pursuant to the amendments made by this section, and ‘‘(II) is made on or before the last day of the first plan year beginning on or after January 1, 2011. In the case of a governmental plan, subclause (II) shall be applied by substituting ‘2012’ for ‘2011’. ‘‘(ii) CONDITIONS.—This paragraph shall not apply to any amendment unless during the period begin- ning on the effective date of the amendment and ending on December 31, 2009, the plan or contract is operated as if such plan or contract amendment were in effect.’’ Pub. L. 110–245, title I, § 104(d), June 17, 2008, 122 Stat. 1627, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [amending this section and sections 403, 404, 414, and 457 of this title] shall apply with respect to deaths and disabilities occurring on or after January 1, 2007. ‘‘(2) PROVISIONS RELATING TO PLAN AMENDMENTS.— ‘‘(A) IN GENERAL.—If this subparagraph applies to any plan or contract amendment, such plan or con- tract shall be treated as being operated in accordance with the terms of the plan during the period de- scribed in subparagraph (B)(iii). ‘‘(B) AMENDMENTS TO WHICH SUBPARAGRAPH (A) AP- PLIES.— ‘‘(i) IN GENERAL.—Subparagraph (A) shall apply to any amendment to any plan or annuity contract which is made— ‘‘(I) pursuant to the amendments made by sub- section (a) [amending this section] or pursuant to any regulation issued by the Secretary of the Treasury under subsection (a), and ‘‘(II) on or before the last day of the first plan year beginning on or after January 1, 2010. In the case of a governmental plan (as defined in section 414(d) of the Internal Revenue Code of 1986), this clause shall be applied by substituting ‘2012’ for ‘2010’ in subclause (II). ‘‘(ii) CONDITIONS.—This paragraph shall not apply to any amendment unless— ‘‘(I) the plan or contract is operated as if such plan or contract amendment were in effect for the period described in clause (iii), and Page 1223 TITLE 26—INTERNAL REVENUE CODE § 401 ‘‘(II) such plan or contract amendment applies retroactively for such period. ‘‘(iii) PERIOD DESCRIBED.—The period described in this clause is the period— ‘‘(I) beginning on the effective date specified by the plan, and ‘‘(II) ending on the date described in clause (i)(II) (or, if earlier, the date the plan or contract amendment is adopted).’’ EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–280, title I, § 114(g), as added by Pub. L. 110–458, title I, § 101(d)(3), Dec. 23, 2008, 122 Stat. 5099, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [amending this section and sections 411, 414, 420, 4971, 4972, and 6059 of this title] shall apply to plan years beginning after 2007. ‘‘(2) EXCISE TAX.—The amendments made by sub- section (e) [amending sections 4971 and 4972 of this title] shall apply to taxable years beginning after 2007, but only with respect to plan years described in para- graph (1) which end with or within any such taxable year.’’ Amendment by section 827(b)(1) of Pub. L. 109–280 ap- plicable to distributions after Sept. 11, 2001, with waiv- er of limitations if refund or credit of overpayment of tax resulting from such amendment is prevented before the close of the 1-year period beginning on Aug. 17, 2006, see section 827(c) of Pub. L. 109–280, set out as a note under section 72 of this title. Pub. L. 109–280, title VIII, § 861(c), Aug. 17, 2006, 120 Stat. 1021, provided that: ‘‘The amendments made by this section [amending this section and provisions set out as a note under this section] shall apply to any year beginning after the date of the enactment of this Act [Aug. 17, 2006].’’ Pub. L. 109–280, title IX, § 901(c), Aug. 17, 2006, 120 Stat. 1032, provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraphs (2) and (3), the amendments made by this section [amending this section, sections 409 and 4980 of this title, and sections 1054 and 1107 of Title 29, Labor] shall apply to plan years beginning after December 31, 2006. ‘‘(2) SPECIAL RULE FOR COLLECTIVELY BARGAINED AGREEMENTS.—In the case of a plan maintained pursu- ant to 1 or more collective bargaining agreements be- tween employee representatives and 1 or more employ- ers ratified on or before the date of the enactment of this Act [Aug. 17, 2006], paragraph (1) shall be applied to benefits pursuant to, and individuals covered by, any such agreement by substituting for ‘December 31, 2006’ the earlier of— ‘‘(A) the later of— ‘‘(i) December 31, 2007, or ‘‘(ii) the date on which the last of such collective bargaining agreements terminates (determined without regard to any extension thereof after such date of enactment), or ‘‘(B) December 31, 2008. ‘‘(3) SPECIAL RULE FOR CERTAIN EMPLOYER SECURITIES HELD IN AN ESOP.— ‘‘(A) IN GENERAL.—In the case of employer securi- ties to which this paragraph applies, the amendments made by this section [amending this section, sections 409 and 4980 of this title, and sections 1054 and 1107 of Title 29, Labor] shall apply to plan years beginning after the earlier of— ‘‘(i) December 31, 2007, or ‘‘(ii) the first date on which the fair market value of such securities exceeds the guaranteed minimum value described in subparagraph (B)(ii). ‘‘(B) APPLICABLE SECURITIES.—This paragraph shall apply to employer securities which are attributable to employer contributions other than elective defer- rals, and which, on September 17, 2003— ‘‘(i) consist of preferred stock, and ‘‘(ii) are within an employee stock ownership plan (as defined in section 4975(e)(7) of the Internal Rev- enue Code of 1986), the terms of which provide that the value of the securities cannot be less than the guaranteed minimum value specified by the plan on such date. ‘‘(C) COORDINATION WITH TRANSITION RULE.—In ap- plying section 401(a)(35)(H) of the Internal Revenue Code of 1986 and section 204(j)(7) of the Employee Re- tirement Income Security Act of 1974 [29 U.S.C. 1054(j)(7)] (as added by this section) to employer secu- rities to which this paragraph applies, the applicable percentage shall be determined without regard to this paragraph.’’ Pub. L. 109–280, title IX, § 902(g), Aug. 17, 2006, 120 Stat. 1039, provided that: ‘‘The amendments made by this section [amending this section, sections 411, 414, 416, and 4979 of this title, and sections 1053, 1132, and 1144 of Title 29, Labor] shall apply to plan years begin- ning after December 31, 2007, except that the amend- ments made by subsection (f) [amending sections 1132 and 1144 of Title 29] shall take effect on the date of the enactment of this Act [Aug. 17, 2006].’’ Pub. L. 109–280, title IX, § 905(c), Aug. 17, 2006, 120 Stat. 1051, provided that: ‘‘The amendments made by this section [amending this section and section 1002 of Title 29, Labor] shall apply to distributions in plan years beginning after December 31, 2006.’’ EFFECTIVE DATE OF 2004 AMENDMENT Pub. L. 108–311, title IV, § 407(c), Oct. 4, 2004, 118 Stat. 1190, provided that: ‘‘The amendments made by this section [amending this section and section 1377 of this title] shall take effect as if included in the provisions of the Small Business Job Protection Act of 1996 [Pub. L. 104–188] to which they relate.’’ EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–147 effective as if included in the provisions of the Economic Growth and Tax Re- lief Reconciliation Act of 2001, Pub. L. 107–16, to which such amendment relates, see section 411(x) of Pub. L. 107–147, set out as a note under section 25B of this title. EFFECTIVE DATE OF 2001 AMENDMENT Amendment by section 611(c), (f)(3), (g)(1) of Pub. L. 107–16 applicable to years beginning after Dec. 31, 2001, see section 611(i)(1) of Pub. L. 107–16, set out as a note under section 415 of this title. Amendment by section 641(e)(3) of Pub. L. 107–16 ap- plicable to distributions after Dec. 31, 2001, see section 641(f)(1) of Pub. L. 107–16, set out as a note under sec- tion 402 of this title. Pub. L. 107–16, title VI, § 643(d), June 7, 2001, 115 Stat. 123, provided that: ‘‘The amendments made by this sec- tion [amending this section and sections 402 and 408 of this title] shall apply to distributions made after De- cember 31, 2001.’’ Pub. L. 107–16, title VI, § 646(b), June 7, 2001, 115 Stat. 126, provided that: ‘‘The amendments made by this sec- tion [amending this section and sections 403 and 457 of this title] shall apply to distributions after December 31, 2001.’’ Pub. L. 107–16, title VI, § 657(d), June 7, 2001, 115 Stat. 137, provided that: ‘‘The amendments made by this sec- tion [amending this section, section 402 of this title, and section 1104 of Title 29, Labor] shall apply to dis- tributions made after final regulations implementing subsection (c)(2)(A) [set out as a note below] are pre- scribed [Final regulations implementing subsec. (c)(2)(A) became effective Mar. 28, 2005. See 69 F.R. 58017.].’’ Pub. L. 107–16, title VI, § 666(b), June 7, 2001, 115 Stat. 144, provided that: ‘‘The amendment made by this sec- tion [amending this section] shall apply to years begin- ning after December 31, 2001.’’ EFFECTIVE DATE OF 2000 AMENDMENT Amendment by Pub. L. 106–554 effective as if included in the provisions of the Small Business Job Protection Act of 1996, Pub. L. 104–188, to which such amendment relates, see section 1(a)(7) [title III, § 316(e)] of Pub. L. 106–554, set out as a note under section 51 of this title. Page 1224 TITLE 26—INTERNAL REVENUE CODE § 401 EFFECTIVE DATE OF 1997 AMENDMENT Pub. L. 105–34, title XV, § 1502(c), Aug. 5, 1997, 111 Stat. 1061, provided that: ‘‘The amendments made by this section [amending this section and section 1056 of Title 29, Labor] shall apply to judgments, orders, and decrees issued, and settlement agreements entered into, on or after the date of the enactment of this Act [Aug. 5, 1997].’’ Pub. L. 105–34, title XV, § 1505(d), Aug. 5, 1997, 111 Stat. 1064, as amended by Pub. L. 105–206, title VI, § 6015(b), July 22, 1998, 112 Stat. 820; Pub. L. 109–280, title VIII, § 861(a)(2), Aug. 17, 2006, 120 Stat. 1021, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [amending this section and sections 403 and 410 of this title] apply to taxable years beginning on or after the date of enactment of this Act [Aug. 5, 1997]. ‘‘(2) TREATMENT FOR YEARS BEGINNING BEFORE DATE OF ENACTMENT.—A governmental plan (within the meaning of section 414(d) of the Internal Revenue Code of 1986) shall be treated as satisfying the requirements of sec- tions 401(a)(3), 401(a)(4), 401(a)(26), 401(k), 401(m), 403(b)(1)(D) and (b)(12)(A)(i), and 410 of such Code for all taxable years beginning before the date of enactment of this Act.’’ Pub. L. 105–34, title XV, § 1525(b), Aug. 5, 1997, 111 Stat. 1072, provided that: ‘‘The amendments made by subsection (a) [amending this section] shall apply to years beginning after December 31, 1997.’’ Pub. L. 105–34, title XV, § 1530(d), Aug. 5, 1997, 111 Stat. 1080, provided that: ‘‘The amendments made by this section [amending this section and sections 404, 415, 664, 674, 2055, 2056, 4947, 4975, 4978, and 4979A of this title] shall apply to transfers made by trusts to, or for the use of, an employee stock ownership plan after the date of the enactment of this Act [Aug. 5, 1997].’’ Amendment by section 1601(d)(2)(A), (B), (3) of Pub. L. 105–34 effective as if included in the provisions of the Small Business Job Protection Act of 1996, Pub. L. 104–188, to which it relates, and amendment by section 1601(d)(2)(D) of Pub. L. 105–34 applicable to calendar years beginning after Aug. 5, 1997, see section 1601(j) of Pub. L. 105–34, set out as a note under section 23 of this title. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by section 1401(b)(5), (6) of Pub. L. 104–188 applicable to taxable years beginning after Dec. 31, 1999, with retention of certain transition rules, see sec- tion 1401(c) of Pub. L. 104–188, set out as a note under section 402 of this title. Pub. L. 104–188, title I, § 1404(b), Aug. 20, 1996, 110 Stat. 1792, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply to years beginning after December 31, 1996.’’ Pub. L. 104–188, title I, § 1422(c), Aug. 20, 1996, 110 Stat. 1801, provided that: ‘‘The amendments made by this section [amending this section] shall apply to plan years beginning after December 31, 1996.’’ Pub. L. 104–188, title I, § 1426(b), Aug. 20, 1996, 110 Stat. 1802, provided that: ‘‘The amendment made by this sec- tion [amending this section] shall apply to plan years beginning after December 31, 1996, but shall not apply to any cash or deferred arrangement to which clause (i) of section 1116(f)(2)(B) of the Tax Reform Act of 1986 ap- plies [Pub. L. 99–514, set out below].’’ Amendment by section 1431(b)(2) of Pub. L. 104–188 ap- plicable to years beginning after Dec. 31, 1996, and amendment by section 1431(c)(1)(B) of Pub. L. 104–188 applicable to years beginning after Dec. 31, 1996, except that in determining whether an employee is a highly compensated employee for years beginning in 1997, amendment by section 1431(c)(1)(B) to be treated as having been in effect for years beginning in 1996, see section 1431(d) of Pub. L. 104–188, set out as a note under section 414 of this title. Pub. L. 104–188, title I, § 1432(c), Aug. 20, 1996, 110 Stat. 1804, provided that: ‘‘The amendments made by this section [amending this section] shall apply to years be- ginning after December 31, 1996.’’ Pub. L. 104–188, title I, § 1433(f), Aug. 20, 1996, 110 Stat. 1807, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [amending this section] shall apply to years begin- ning after December 31, 1998. ‘‘(2) EXCEPTIONS.—The amendments made by sub- sections (c), (d), and (e) [amending this section] shall apply to years beginning after December 31, 1996.’’ Pub. L. 104–188, title I, § 1441(b), Aug. 20, 1996, 110 Stat. 1808, provided that: ‘‘The amendments made by this section [amending this section] shall apply to years be- ginning after December 31, 1996.’’ Pub. L. 104–188, title I, § 1443(c), Aug. 20, 1996, 110 Stat. 1809, provided that: ‘‘(1) DISTRIBUTIONS.—The amendments made by sub- section (a) [amending this section] shall apply to dis- tributions after the date of the enactment of this Act [Aug. 20, 1996]. ‘‘(2) PUBLIC UTILITY DISTRICTS.—The amendments made by subsection (b) [amending this section] shall apply to plan years beginning after December 31, 1996.’’ Pub. L. 104–188, title I, § 1445(b), Aug. 20, 1996, 110 Stat. 1811, provided that: ‘‘The amendment made by this sec- tion [amending this section] shall apply to years begin- ning after December 31, 1996.’’ Pub. L. 104–188, title I, § 1459(c), Aug. 20, 1996, 110 Stat. 1820, provided that: ‘‘The amendments made by this section [amending this section] shall apply to plan years beginning after December 31, 1998.’’ EFFECTIVE DATE OF 1994 AMENDMENT Pub. L. 103–465, title VII, § 732(e), Dec. 8, 1994, 108 Stat. 5005, provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), the amendments made by this section [amending this section and sections 402, 408, and 415 of this title] shall apply to years beginning after December 31, 1994. ‘‘(2) ROUNDING NOT TO RESULT IN DECREASES.—The amendments made by this section providing for the rounding of indexed amounts shall not apply to any year to the extent the rounding would require the in- dexed amount to be reduced below the amount in effect for years beginning in 1994.’’ Pub. L. 103–465, title VII, § 751(b), Dec. 8, 1994, 108 Stat. 5022, provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), the amendments made by this section [amending this section and sections 404, 412, and 4971 of this title] shall apply to plan years beginning after December 31, 1994. ‘‘(2) REFERENCE.—The amendment made by sub- section (a)(11) [amending section 404 of this title] shall take effect on the date of the enactment of this Act [Dec. 8, 1994].’’ Pub. L. 103–465, title VII, § 766(d), Dec. 8, 1994, 108 Stat. 5037, provided that: ‘‘The amendments made by this section [amending this section and sections 1054 and 1322 of Title 29, Labor] shall apply to plan amendments adopted on or after the date of enactment of this Act [Dec. 8, 1994].’’ Amendment by section 776(d) of Pub. L. 103–465 effec- tive with respect to distributions that occur in plan years commencing on or after Jan. 1, 1996, see section 776(e) of Pub. L. 103–465, set out as a note under section 1056 of Title 29, Labor. Pub. L. 103–465, title VII, § 781, Dec. 8, 1994, 108 Stat. 5050, provided that: ‘‘Except as otherwise provided in this subtitle [subtitle F (§§ 750–781) of title VII of Pub. L. 103–465, enacting sections 1310, 1311, and 1350 of Title 29, Labor, amending this section, sections 404, 411, 412, 415, 417, 4971, and 4972 of this title, and sections 1053 to 1056, 1082, 1132, 1301, 1303, 1305, 1306, 1322, 1341, 1342, and 1343 of Title 29, and enacting provisions set out as notes under this section, sections 1, 411, 412, and 4972 of this title, and sections 1056, 1082, 1303, 1306, 1310, 1311, 1322, 1341, and 1342 of Title 29], the amendments made by this subtitle shall be effective on the date of enactment of this Act [Dec. 8, 1994].’’ EFFECTIVE DATE OF 1993 AMENDMENT Pub. L. 103–66, title XIII, § 13212(d), Aug. 10, 1993, 107 Stat. 472, provided that: Page 1225 TITLE 26—INTERNAL REVENUE CODE § 401 ‘‘(1) IN GENERAL.—Except as provided in this sub- section, the amendments made by this section [amend- ing this section and sections 404, 408, and 505 of this title] shall apply to benefits accruing in plan years be- ginning after December 31, 1993. ‘‘(2) COLLECTIVELY BARGAINED PLANS.—In the case of a plan maintained pursuant to 1 or more collective bar- gaining agreements between employee representatives and 1 or more employers ratified before the date of the enactment of this Act [Aug. 10, 1993], the amendments made by this section shall not apply to contributions or benefits pursuant to such agreements for plan years beginning before the earlier of— ‘‘(A) the latest of— ‘‘(i) January 1, 1994, ‘‘(ii) the date on which the last of such collective bargaining agreements terminates (without regard to any extension, amendment, or modification of such agreements on or after such date of enact- ment), or ‘‘(iii) in the case of a plan maintained pursuant to collective bargaining under the Railway Labor Act [45 U.S.C. 151 et seq.], the date of execution of an extension or replacement of the last of such collec- tive bargaining agreements in effect on such date of enactment, or ‘‘(B) January 1, 1997. ‘‘(3) TRANSITION RULE FOR STATE AND LOCAL PLANS.— ‘‘(A) IN GENERAL.—In the case of an eligible partici- pant in a governmental plan (within the meaning of section 414(d) of the Internal Revenue Code of 1986), the dollar limitation under section 401(a)(17) of such Code shall not apply to the extent the amount of compensation which is allowed to be taken into ac- count under the plan would be reduced below the amount which was allowed to be taken into account under the plan as in effect on July 1, 1993. ‘‘(B) ELIGIBLE PARTICIPANT.—For purposes of sub- paragraph (A), an eligible participant is an individual who first became a participant in the plan during a plan year beginning before the 1st plan year begin- ning after the earlier of— ‘‘(i) the plan year in which the plan is amended to reflect the amendments made by this section, or ‘‘(ii) December 31, 1995. ‘‘(C) PLAN MUST BE AMENDED TO INCORPORATE LIM- ITS.—This paragraph shall not apply to any eligible participant of a plan unless the plan is amended so that the plan incorporates by reference the dollar limitation under section 401(a)(17) of the Internal Revenue Code of 1986, effective with respect to non- eligible participants for plan years beginning after December 31, 1995 (or earlier if the plan amendment so provides).’’ EFFECTIVE DATE OF 1992 AMENDMENT Amendment by section 521(b)(5)–(8) of Pub. L. 102–318 applicable to distributions after Dec. 31, 1992, see sec- tion 521(e) of Pub. L. 102–318, set out as a note under section 402 of this title. Pub. L. 102–318, title V, § 522(d), July 3, 1992, 106 Stat. 315, provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), the amendments made by this section [amending this section and sections 402 to 404, 3402, 3405, 6047, and 6652 of this title] shall apply to distributions after Decem- ber 31, 1992. ‘‘(2) TRANSITION RULE FOR CERTAIN ANNUITY CON- TRACTS.—If, as of July 1, 1992, a State law prohibits a direct trustee-to-trustee transfer from an annuity con- tract described in section 403(b) of the Internal Revenue Code of 1986 which was purchased for an employee by an employer which is a State or a political subdivision thereof (or an agency or instrumentality of any 1 or more of either), the amendments made by this section shall not apply to distributions before the earlier of— ‘‘(A) 90 days after the first day after July 1, 1992, on which such transfer is allowed under State law, or ‘‘(B) January 1, 1994.’’ EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–508 applicable to transfers in taxable years beginning after Dec. 31, 1990, see sec- tion 12011(c)(1) of Pub. L. 101–508, set out as an Effective Date note under section 420 of this title. EFFECTIVE DATE OF 1989 AMENDMENT Pub. L. 101–239, title VII, § 7311(b), Dec. 19, 1989, 103 Stat. 2354, provided that: ‘‘(1) IN GENERAL.—The amendment made by this sec- tion [amending this section] shall apply to contribu- tions after October 3, 1989. ‘‘(2) TRANSITION.—The amendment made by this sec- tion shall not apply to contributions made before Janu- ary 1, 1990, if— ‘‘(A) the employer requested before October 3, 1989, a private letter ruling or determination letter with respect to the qualification of the plan maintaining the account under section 401(h) of the Internal Rev- enue Code of 1986, ‘‘(B) the request sets forth a method under which the amount of contributions to the account are to be determined on the basis of cost, ‘‘(C) such method is permissible under section 401(h) of such Code under the provisions of General Counsel Memorandum 39785, and ‘‘(D) the Internal Revenue Service issued before Oc- tober 4, 1989, a private letter ruling, determination letter, or other letter providing that the specific plan involved qualifies under section 401(a) of such Code when such method is used, that contributions to the account are deductible, or acknowledging that the account would not adversely affect the qualified sta- tus of the plan (contingent on all phases of the par- ticular plan being approved).’’ Amendment by sections 7811(g)(1), (h)(3) and 7816(l) of Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Technical and Mis- cellaneous Revenue Act of 1988, Pub. L. 100–647, to which such amendment relates, see section 7817 of Pub. L. 101–239, set out as a note under section 1 of this title. Pub. L. 101–239, title VII, § 7882, Dec. 19, 1989, 103 Stat. 2445, provided that: ‘‘Except as otherwise provided in this subpart [subpart C (§§ 7881, 7882) of part V of title VII of Pub. L. 101–239, amending this section and sec- tions 411 and 412 of this title, and sections 1002, 1021, 1023, 1054, 1082, 1083, 1085b, 1103, 1107, 1108, 1113, 1132, 1306, 1322, 1341, 1342, 1344, 1362, 1364, 1368, 1370, and 1371 of Title 29, Labor, enacting provisions set out as a note under section 1054 of Title 29, and amending provisions set out as notes under sections 404 and 412 of this title and sections 1021, 1301, 1322, and 1344 of Title 29], any amendment made by this subpart shall take effect as if included in the provision of the Pension Protection Act [Pub. L. 100–203, title IX, subtitle D, part II, §§ 9302–9346] to which such amendment relates.’’ Amendment by Pub. L. 101–140 effective as if included in section 1151 of Pub. L. 99–514, see section 203(c) of Pub. L. 101–140, set out as a note under section 79 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Pub. L. 100–647, title I, § 1011(c)(7)(E), Nov. 10, 1988, 102 Stat. 3458, provided that: ‘‘(i) Except as provided in clause (ii), the amendments made by this paragraph [amending this section and sec- tions 403, 408, and 501 of this title] shall apply to plan years beginning after December 31, 1987. ‘‘(ii) In the case of a plan described in section 1105(c)(2) of the Reform Act [section 1105(c)(2) of Pub. L. 99–514, set out as an Effective Date of 1986 Amendment note under section 402 of this title], the amendments made by this paragraph shall not apply to contribu- tions made pursuant to an agreement described in such section for plan years beginning before the earlier of— ‘‘(I) the later of January 1, 1988, or the date on which the last of such agreements terminates (deter- mined without regard to any extension thereof after February 28, 1986), or Page 1226 TITLE 26—INTERNAL REVENUE CODE § 401 ‘‘(II) January 1, 1989.’’ Pub. L. 100–647, title I, § 1011(k)(1)(C), Nov. 10, 1988, 102 Stat. 3469, provided that: ‘‘(i) Subparagraph (A)(i) of section 401(k)(10) of the 1986 Code (as added by subparagraph (B)) shall apply to distributions after October 16, 1987. ‘‘(ii) Subparagraph (B) of section 401(k)(10) of the 1986 Code (as added by subparagraph (B)) shall apply to dis- tributions after March 31, 1988.’’ Pub. L. 100–647, title I, § 1011(l)(5)(B), Nov. 10, 1988, 102 Stat. 3470, provided that: ‘‘The amendment made by this paragraph [amending this section] shall take effect as if included in the amendments made by section 1120 of the Reform Act [Pub. L. 99–514].’’ Amendment by sections 1011(d)(4), (e)(3), (g)(1)–(3), (h)(3), (k)(1)(A), (B), (2)–(7), (9), (l)(1)–(4), (6), (7), 1011A(j), (l), and 1011B(j)(1), (2), (6), (k)(1), (2) of Pub. L. 100–647 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) of Pub. L. 100–647, set out as a note under sec- tion 1 of this title. Pub. L. 100–647, title VI, § 6053(b), Nov. 10, 1988, 102 Stat. 3696, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall take effect as if included in the amendments made by section 1121 of the Reform Act [Pub. L. 99–514].’’ Pub. L. 100–647, title VI, § 6055(b), Nov. 10, 1988, 102 Stat. 3697, provided that: ‘‘The amendment made by this section [amending this section] shall take effect as if included in the amendments made by section 1112(b) of the Reform Act [Pub. L. 99–514].’’ Pub. L. 100–647, title VI, § 6071(d), Nov. 10, 1988, 102 Stat. 3705, provided that: ‘‘The amendments made by this section [amending this section and section 457 of this title] shall apply to taxable years beginning after the date of the enactment of this Act [Nov. 10, 1988].’’ EFFECTIVE DATE OF 1987 AMENDMENT Pub. L. 100–203, title IX, § 9341(c), Dec. 22, 1987, 101 Stat. 1330–371, as amended by Pub. L. 101–239, title VII, § 7881(i)(5), Dec. 19, 1989, 103 Stat. 2442, provided that: ‘‘(1) IN GENERAL.—Except as provided in this sub- section, the amendments made by this section [enact- ing section 1085b of Title 29, Labor, and amending this section] shall apply to plan amendments adopted after the date of the enactment of this Act [Dec. 22, 1987]. ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.—In the case of a plan maintained pursuant to 1 or more collec- tive bargaining agreements between employee rep- resentatives and 1 or more employers ratified before the date of the enactment of this Act, the amendments made by this section shall not apply to plan amend- ments adopted pursuant to collective bargaining agree- ments ratified before the date of enactment (without regard to any extension, amendment, or modification of such agreements on or after such date of enact- ment).’’ EFFECTIVE DATE OF 1986 AMENDMENT Amendment by section 1106(d)(1) of Pub. L. 99–514 ap- plicable to benefits accruing in years beginning after Dec. 31, 1988, except as otherwise provided, see section 1106(i)(5) of Pub. L. 99–514, set out as a note under sec- tion 415 of this title. Pub. L. 99–514, title XI, § 1111(c), Oct. 22, 1986, 100 Stat. 2440, as amended by Pub. L. 100–647, title I, § 1011(g)(4), Nov. 10, 1988, 102 Stat. 3464, provided that: ‘‘(1) SUBSECTION (a).—The amendments made by sub- section (a) [amending this section] shall apply to bene- fits attributable to plan years beginning after Decem- ber 31, 1988. ‘‘(2) SUBSECTION (b).—The amendments made by sub- section (b) [amending this section] shall apply to years beginning after December 31, 1988. ‘‘(3) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREE- MENTS.—In the case of a plan maintained pursuant to 1 or more collective bargaining agreements between em- ployee representatives and 1 or more employers ratified before March 1, 1986, the amendments made by this sec- tion shall not apply to plan years beginning before the earlier of— ‘‘(A) the later of— ‘‘(i) January 1, 1989, or ‘‘(ii) the date on which the last of such collective bargaining agreements terminates (determined without regard to any extension thereof after Feb- ruary 28, 1986), or ‘‘(B) January 1, 1991.’’ Pub. L. 99–514, title XI, § 1112(e), Oct. 22, 1986, 100 Stat. 2445, as amended by Pub. L. 100–647, title I, § 1011(h)(6)–(9), Nov. 10, 1988, 102 Stat. 3465, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [amending this section and sections 402, 404, 406, 407, 410, and 818 of this title] shall apply to plan years beginning after December 31, 1988. ‘‘(2) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREE- MENTS.—In the case of a plan maintained pursuant to 1 or more collective bargaining agreements between em- ployee representatives and 1 or more employers ratified before March 1, 1986, the amendments made by this sec- tion shall not apply to plan years beginning before the earlier of— ‘‘(A) the later of— ‘‘(i) January 1, 1989, or ‘‘(ii) the date on which the last of such collective bargaining agreement terminates (determined without regard to any extension thereof after Feb- ruary 28, 1986), or ‘‘(B) January 1, 1991. ‘‘(3) WAIVER OF EXCISE TAX ON REVERSIONS.— ‘‘(A) IN GENERAL.—If— ‘‘(i) a plan is in existence on August 16, 1986, ‘‘(ii) such plan would fail to meet the require- ments of section 401(a)(26) of the Internal Revenue Code of 1986 (as added by subsection (b)) if such sec- tion were in effect for the plan year including Au- gust 16, 1986, and ‘‘(iii) there is no transfer of assets to or liabilities from the plan or spinoff or merger involving such plan after August 16, 1986, then no tax shall be imposed under section 4980 of such Code on any employer reversion by reason of the termination or merger of such plan before the 1st year to which the amendment made by subsection (b) applies. ‘‘(B) INTEREST RATE FOR DETERMINING ACCRUED BEN- EFIT OF HIGHLY COMPENSATED EMPLOYEES FOR CERTAIN PURPOSES.—In the case of a termination, transfer, or distribution of assets of a plan described in subpara- graph (A)(ii) before the 1st year to which the amend- ment made by subsection (b) applies— ‘‘(i) AMOUNT ELIGIBLE FOR ROLLOVER, INCOME AVERAGING, OR TAX-FREE TRANSFER.—For purposes of determining any eligible amount, the present value of the accrued benefit of any highly com- pensated employee shall be determined by using an interest rate not less than the highest of— ‘‘(I) the applicable rate under the plan’s method in effect under the plan on August 16, 1986, ‘‘(II) the highest rate (as of the date of the ter- mination, transfer, or distribution) determined under any of the methods applicable under the plan at any time after August 15, 1986, and before the termination, transfer, or distribution in cal- culating the present value of the accrued benefit of an employee who is not a highly compensated employee under the plan (or any other plan used in determining whether the plan meets the re- quirements of section 401 of the Internal Revenue Code of 1986), or ‘‘(III) 5 percent. ‘‘(ii) ELIGIBLE AMOUNT.—For purposes of clause (i), the term ‘eligible amount’ means any amount with respect to a highly compensated employee which— ‘‘(I) may be rolled over under section 402(a)(5) of such Code, ‘‘(II) is eligible for income averaging under sec- tion 402(e)(1) of such Code, or capital gains treat- Page 1227 TITLE 26—INTERNAL REVENUE CODE § 401 ment under section 402(a)(2) or 403(a)(2) of such Code (as in effect before this Act), or ‘‘(III) may be transferred to another plan with- out inclusion in gross income. ‘‘(iii) AMOUNTS SUBJECT TO EARLY WITHDRAWAL OR EXCESS DISTRIBUTION TAX.—For purposes of sections 72(t) and 4980A of such Code, there shall not be taken into account the excess (if any) of— ‘‘(I) the amount distributed to a highly com- pensated employee by reason of such termination or distribution, over ‘‘(II) the amount determined by using the inter- est rate applicable under clause (i). ‘‘(iv) DISTRIBUTIONS OF ANNUITY CONTRACTS.—If an annuity contract purchased after August 16, 1986, is distributed to a highly compensated employee in connection with such termination or distribution, there shall be included in gross income for the tax- able year of such distribution an amount equal to the excess of— ‘‘(I) the purchase price of such contract, over ‘‘(II) the present value of the benefits payable under such contract determined by using the in- terest rate applicable under clause (i). Such excess shall not be taken into account for pur- poses of sections 72(t) and 4980A of such Code. ‘‘(v) HIGHLY COMPENSATED EMPLOYEE.—For pur- poses of this subparagraph, the term ‘highly com- pensated employee’ has the meaning given such term by section 414(q) of such Code. ‘‘(4) SPECIAL RULE FOR PLANS WHICH MAY NOT TERMI- NATE.—To the extent provided in regulations prescribed by the Secretary of the Treasury or his delegate, if a plan is prohibited from terminating under title IV of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1301 et seq.] before the 1st year to which the amendment made by subsection (b) would apply, the amendment made by subsection (b) shall only apply to years after the 1st year in which the plan is able to ter- minate.’’ Amendment by section 1114(b)(7) of Pub. L. 99–514 ap- plicable to years beginning after Dec. 31, 1988, see sec- tion 1114(c)(3) of Pub. L. 99–514, set out as a note under section 414 of this title. Pub. L. 99–514, title XI, § 1116(f), Oct. 22, 1986, 100 Stat. 2457, as amended by Pub. L. 100–647, title I, § 1011(k)(8), (10), Nov. 10, 1988, 102 Stat. 3470, provided that: ‘‘(1) IN GENERAL.—Except as provided in this sub- section, the amendments made by this section [amend- ing this section] shall apply to years beginning after December 31, 1988. ‘‘(2) NONDISCRIMINATION RULES.— ‘‘(A) IN GENERAL.—Except as provided in subpara- graph (B), the amendments made by subsections (a), (b)(4), and (d) [amending this section], and the provi- sions of section 401(k)(4)(B) of the Internal Revenue Code of 1986 (as added by this section), shall apply to years beginning after December 31, 1986. ‘‘(B) TRANSITION RULES FOR CERTAIN GOVERNMENTAL AND TAX-EXEMPT PLANS.—Subparagraph (B) of section 401(k)(4) of the Internal Revenue Code of 1986 (relat- ing to governments and tax-exempt organizations not eligible for cash or deferred arrangements), as added by this section, shall not apply to any cash or de- ferred arrangement adopted by— ‘‘(i) a State or local government or political sub- division thereof, or any agency or instrumentality thereof, before May 6, 1986, or ‘‘(ii) a tax-exempt organization before July 2, 1986. In the case of an arrangement described in clause (i), the amendments made by subsections (a), (b)(4), and (d) shall apply to years beginning after December 31, 1988. If clause (i) or (ii) applies to any arrangement adopted by a governmental unit, then any cash or de- ferred arrangement adopted by such unit on or after the date referred to in the applicable clause shall be treated as adopted before such date. ‘‘(3) AGGREGATION AND EXCESS CONTRIBUTIONS.—The amendments made by subsections (c) and (e) [amending this section] shall apply to years beginning after De- cember 31, 1986. ‘‘(4) COLLECTIVE BARGAINING AGREEMENTS.— ‘‘(A) IN GENERAL.—In the case of a plan maintained pursuant to 1 or more collective bargaining agree- ments between employee representatives and 1 or more employers ratified before March 1, 1986, the amendments made by this section shall not apply to years beginning before the earlier of— ‘‘(i) the later of— ‘‘(I) January 1, 1989, or ‘‘(II) the date on which the last of such collec- tive bargaining agreements terminates (deter- mined without regard to any extension thereof after February 28, 1986), or ‘‘(ii) January 1, 1991. ‘‘(B) SPECIAL RULE FOR NONDISCRIMINATION RULES.— In the case of a plan described in subparagraph (A), the amendments and provisions described in para- graph (2) shall not apply to years beginning before the earlier of— ‘‘(i) the date determined under subparagraph (A)(i)(II), or ‘‘(ii) January 1, 1989. ‘‘(5) SPECIAL RULE FOR QUALIFIED OFFSET ARRANGE- MENTS.— ‘‘(A) IN GENERAL.—A cash or deferred arrangement shall not be treated as failing to meet the require- ments of section 401(k)(4) of the Internal Revenue Code of 1986 (as added by this section) to the extent such arrangement is part of a qualified offset ar- rangement consisting of such cash or deferred ar- rangement and a defined benefit plan. ‘‘(B) QUALIFIED OFFSET ARRANGEMENT.—For pur- poses of subparagraph (A), a cash or deferred arrange- ment is part of a qualified offset arrangement with a defined benefit plan to the extent such offset arrange- ment satisfies each of the following conditions with respect to the employer maintaining the arrange- ment on April 16, 1986, and at all times thereafter: ‘‘(i) The benefit under the defined benefit plan is directly and uniformly conditioned on the initial elective deferrals (up to 4 percent of compensation). ‘‘(ii) The benefit provided under the defined ben- efit plan (before the offset) is at least 60 percent of an employee’s cumulative elective deferrals (up to 4 percent of compensation). ‘‘(iii) The benefit under the defined benefit plan is reduced by the benefit attributable to the employ- ee’s elective deferrals under the plan (up to 4 per- cent of compensation) and the income allocable thereto. The interest rate used to calculate the re- duction shall not exceed the greater of the rate under section 411(a)(11)(B)(ii) of such Code or the in- terest rate applicable under section 411(c)(2)(C)(iii) of such Code, taking into account section 411(c)(2)(D) of such Code. For purposes of applying section 401(k)(3) of such Code to the cash or deferred arrangement, the bene- fits under the defined benefit plan conditioned on ini- tial elective deferrals may be treated as matching contributions under such rules as the Secretary of the Treasury or his delegate may prescribe. The Sec- retary shall provide rules for the application of this paragraph in the case of successor plans. ‘‘(C) DEFINITION OF EMPLOYER.—For purposes of this paragraph, the term ‘employer’ includes any research and development center which is federally funded and engaged in cancer research, but only with respect to employees of contractor-operators whose salaries are reimbursed as direct costs against the operator’s con- tract to perform work at such center. ‘‘(6) WITHDRAWALS ON SALE OF ASSETS.—Subclauses (II), (III), and (IV) of section 401(k)(2)(B)(i) of the Inter- nal Revenue Code of 1986 (as added by subsection (b)(1)) shall apply to distributions after December 31, 1984. ‘‘(7) DISTRIBUTIONS BEFORE PLAN AMENDMENT.— ‘‘(A) IN GENERAL.—If a plan amendment is required to allow a plan to make any distribution described in section 401(k)(8) of the Internal Revenue Code of 1986, Page 1228 TITLE 26—INTERNAL REVENUE CODE § 401 any such distribution which is made before the close of the 1st plan year for which such amendment is re- quired to be in effect under section 1140 [set out as a note below], shall be treated as made in accordance with the provisions of such plan. ‘‘(B) DISTRIBUTIONS PURSUANT TO MODEL AMEND- MENT.— ‘‘(i) SECRETARY TO PRESCRIBE AMENDMENT.—The Secretary of the Treasury or his delegate shall pre- scribe an amendment which allows a plan to make any distribution described in section 401(k)(8) of such Code. ‘‘(ii) ADOPTION BY PLAN.—If a plan adopts the amendment prescribed under clause (i) and makes a distribution in accordance with such amendment, such distribution shall be treated as made in ac- cordance with the provisions of the plan.’’ Pub. L. 99–514, title XI, § 1117(d), Oct. 22, 1986, 100 Stat. 2462, as amended by Pub. L. 100–647, title I, § 1011(l)(12), Nov. 10, 1988, 102 Stat. 3471, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [enacting section 4979 of this title and amending this section and section 414 of this title] shall apply to plan years beginning after December 31, 1986. ‘‘(2) COLLECTIVE BARGAINING AGREEMENTS.—In the case of a plan maintained pursuant to 1 or more collec- tive bargaining agreements between employee rep- resentatives and 1 or more employers ratified before March 1, 1986, the amendments made by this section shall not apply to plan years beginning before the ear- lier of— ‘‘(A) January 1, 1989, or ‘‘(B) the date on which the last of such collective bargaining agreements terminates (determined with- out regard to any extension thereof after February 28, 1986). ‘‘(3) ANNUITY CONTRACTS.—In the case of an annuity contract under section 403(b) of the Internal Revenue Code of 1986— ‘‘(A) the amendments made by this section shall apply to plan years beginning after December 31, 1988, and ‘‘(B) in the case of a collective bargaining agree- ment described in paragraph (2), the amendments made by this section shall not apply to years begin- ning before the earlier of— ‘‘(i) the later of— ‘‘(I) January 1, 1989, or ‘‘(II) the date determined under paragraph (2)(B), or ‘‘(ii) January 1, 1991. ‘‘(4) DISTRIBUTIONS BEFORE PLAN AMENDMENT.— ‘‘(A) IN GENERAL.—If a plan amendment is required to allow a plan to make any distribution described in section 401(m)(6) of the Internal Revenue Code of 1986, any such distribution which is made before the close of the 1st plan year for which such amendment is re- quired to be in effect under section 1140 [set out as a note below] shall be treated as made in accordance with the provisions of the plan. ‘‘(B) DISTRIBUTIONS PURSUANT TO MODEL AMEND- MENT.— ‘‘(i) SECRETARY TO PRESCRIBE AMENDMENT.—The Secretary of the Treasury or his delegate shall pre- scribe an amendment which allows a plan to make any distribution described in section 401(m)(6) of the Internal Revenue Code of 1986. ‘‘(ii) ADOPTION BY PLAN.—If a plan adopts the amendment prescribed under clause (i) and makes a distribution in accordance with such amendment, such distribution shall be treated as made in ac- cordance with the provisions of the plan.’’ Pub. L. 99–514, title XI, § 1119(b), Oct. 22, 1986, 100 Stat. 2463, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply to plan years beginning after December 31, 1985.’’ Pub. L. 99–514, title XI, § 1121(d), Oct. 22, 1986, 100 Stat. 2465, as amended by Pub. L. 100–647, title I, § 1011A(a)(3), (4), Nov. 10, 1988, 102 Stat. 3472, provided that: ‘‘(1) IN GENERAL.—Except as provided in this sub- section, the amendments made by this section [amend- ing this section and sections 402, 408, and 4974 of this title] shall apply to years beginning after December 31, 1988. ‘‘(2) SUBSECTION (c).—The amendments made by sub- section (c) [amending sections 402 and 408 of this title] shall apply to years beginning after December 31, 1986. ‘‘(3) COLLECTIVE BARGAINING AGREEMENTS.—In the case of a plan maintained pursuant to 1 or more collec- tive bargaining agreements between employee rep- resentatives and 1 or more employers ratified before March 1, 1986, the amendments made by this section shall not apply to distributions to individuals covered by such agreements in years beginning before the ear- lier of— ‘‘(A) the later of— ‘‘(i) the date on which the last of such collective bargaining agreements terminates (determined without regard to any extension thereof after Feb- ruary 28, 1986), or ‘‘(ii) January 1, 1989, or ‘‘(B) January 1, 1991. ‘‘(4) TRANSITION RULES.— ‘‘(A) The amendments made by subsections (a) and (b) [amending this section and section 4974 of this title] shall not apply with respect to any benefits with respect to which a designation is in effect under section 242(b)(2) of the Tax Equity and Fiscal Respon- sibility Act of 1982 [section 242(b)(2) of Pub. L. 97–248, formerly set out as a note below]. ‘‘(B)(i) Except as provided in clause (ii), the amend- ment made by subsection (b) [amending this section] shall not apply in the case of any individual who has attained age 701⁄2 before January 1, 1988. ‘‘(ii) Clause (i) shall not apply to any individual who is a 5-percent owner (as defined in section 416(i) of the Internal Revenue Code of 1986), at any time during— ‘‘(I) the plan year ending with or within the cal- endar year in which such owner attains age 661⁄2, and ‘‘(II) any subsequent plan year. ‘‘(5) PLANS MAY INCORPORATE SECTION 401(a)(9) RE- QUIREMENTS BY REFERENCE.—Notwithstanding any other provision of law, except as provided in regula- tions prescribed by the Secretary of the Treasury or his delegate, a plan may incorporate by reference the re- quirements of section 401(a)(9) of the Internal Revenue Code of 1986.’’ Pub. L. 99–514, title XI, § 1136(c), Oct. 22, 1986, 100 Stat. 2486, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply to years beginning after December 31, 1985.’’ Pub. L. 99–514, title XI, § 1143(b), Oct. 22, 1986, 100 Stat. 2490, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply to tax- able years beginning after December 31, 1986.’’ Pub. L. 99–514, title XI, § 1145(d), Oct. 22, 1986, 100 Stat. 2491, provided that: ‘‘The amendments made by this section [amending this section, section 1055 of Title 29, Labor, and provisions set out as a note under section 1001 of Title 29] shall apply as if included in the amend- ments made by the Retirement Equity Act of 1984 [Pub. L. 98–397].’’ Amendment by section 1171(b)(5) of Pub. L. 99–514 ap- plicable to compensation paid or accrued after Dec. 31, 1986, in taxable years ending after such date, except as otherwise provided, see section 1171(c) of Pub. L. 99–514, set out as a note under section 38 of this title. Pub. L. 99–514, title XI, § 1174(c)(2)(B), Oct. 22, 1986, 100 Stat. 2518, provided that: ‘‘The amendment made by this paragraph [amending this section] shall apply to distributions attributable to stock acquired after De- cember 31, 1986.’’ Pub. L. 99–514, title XI, § 1175(a)(2), Oct. 22, 1986, 100 Stat. 2519, provided that: ‘‘The amendment made by this subsection [amending this section] shall apply to stock acquired after December 31, 1986.’’ Pub. L. 99–514, title XI, § 1176(c), Oct. 22, 1986, 100 Stat. 2520, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall be effective Page 1229 TITLE 26—INTERNAL REVENUE CODE § 401 December 31, 1986. The amendment made by subsection (b) [amending section 409 of this title] shall apply to ac- quisitions of securities after December 31, 1986.’’ Pub. L. 99–514, title XVIII, § 1852(h)(1), Oct. 22, 1986, 100 Stat. 2869, as amended by Pub. L. 100–647, title I, § 1018(t)(3)(C), Nov. 10, 1988, 102 Stat. 3588, provided that the amendment made by that section is effective for years beginning after Dec. 31, 1985. Pub. L. 99–514, title XVIII, § 1879(g)(3), Oct. 22, 1986, 100 Stat. 2907, provided that: ‘‘The amendments made by this subsection [amending this section] shall apply to plan years beginning after December 31, 1984.’’ Amendment by sections 1848(b) and 1852(a)(4)(A), (6), (b)(8), (g), (h)(1) of Pub. L. 99–514 effective, except as otherwise provided, as if included in the provisions of the Tax Reform Act of 1984, Pub. L. 98–369, div. A, to which such amendment relates, see section 1881 of Pub. L. 99–514, set out as a note under section 48 of this title. Pub. L. 99–514, title XVIII, § 1898(j), Oct. 22, 1986, 100 Stat. 2957, provided that: ‘‘Except as otherwise provided in this section, any amendment made by this section [amending this section, sections 402, 411, 414, 415, 417, and 2503 of this title, and sections 1053 to 1056 of Title 29, Labor, and provisions set out as notes under section 1001 of Title 29] shall take effect as if included in the provision of the Retirement Equity Act of 1984 [Pub. L. 98–397] to which such amendment relates.’’ EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 203(a) of Pub. L. 98–397 appli- cable to plan years beginning after Dec. 31, 1984, amend- ment by section 204(a) of Pub. L. 98–397 effective Jan. 1, 1985, and amendment by section 301(b) of Pub. L. 98–397 applicable to plan amendments made after July 30, 1984, but not applicable to the termination of a certain de- fined benefit plan, except as otherwise provided, see sections 302 and 303 of Pub. L. 98–397, set out as a note under section 1001 of Title 29, Labor. Nothing in amendment by section 203(a) of Pub. L. 98–397 to prevent any distribution required by reason of a failure to comply with the terms of a loan made on or before Aug. 18, 1985, and secured by a portion of the participant’s accrued benefit, see section 1898(b)(4)(C)(ii) of Pub. L. 99–514, set out as an Effective Date of 1986 Amendment note under section 417 of this title. Amendment by section 211(b)(5) of Pub. L. 98–369 ap- plicable to taxable years beginning after Dec. 31, 1983, see section 215 of Pub. L. 98–369, set out as an Effective Date note under section 801 of this title. Amendment by section 474(r)(13) of Pub. L. 98–369 ap- plicable to taxable years beginning after Dec. 31, 1983, and to carrybacks from such years, see section 475(a) of Pub. L. 98–369, set out as a note under section 21 of this title. Pub. L. 98–369, div. A, title IV, § 491(f)(3), July 18, 1984, 98 Stat. 853, provided that: ‘‘The amendments made by subsection (e) [redesignating section 409A as section 409 of this title and amending this section and sections 41, 415, 4975, and 6699 of this title] shall take effect on Jan- uary 1, 1984.’’ Pub. L. 98–369, div. A, title V, § 521(e), July 18, 1984, 98 Stat. 868, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [amending this section and sections 72, 403, and 408 of this title and repealing provisions set out as a note under this section] shall apply to years beginning after December 31, 1984. ‘‘(2) REPEAL OF SECTION 242 OF TEFRA.—The amend- ment made by subsection (a)(2) [repealing section 242 of Pub. L. 97–248, which amended this section and enacted provisions formerly set out below] shall take effect as if included in the Tax Equity and Fiscal Responsibility Act of 1982 [Pub. L. 97–248]. ‘‘(3) TRANSITION RULE.—A trust forming part of a plan shall not be disqualified under paragraph (9) of section 401(a) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954], as amended by subsection (a)(1), by reason of distributions under a designation (before January 1, 1984) by any employee in accordance with a designation described in section 242(b)(2) of the Tax Equity and Fis- cal Responsibility Act of 1982 (as in efffect [sic] before the amendments made by this Act) [formerly set out as an Effective Date of 1982 Amendment note below]. ‘‘(4) SPECIAL RULE FOR GOVERNMENTAL PLANS.—In the case of a governmental plan (within the meaning of section 414(d) of the Internal Revenue Code of 1986), paragraph (1) shall be applied by substituting ‘1986’ for ‘1984’. ‘‘(5) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREE- MENTS.—In the case of a plan maintained pursuant to one or more collective bargaining agreements ratified on or before the date of the enactment of this Act [July 18, 1984] between employee representatives and one or more employers, the amendments made by this section shall not apply to years beginning before the earlier of— ‘‘(A) the date on which the last of the collective bargaining agreements relating to the plan termi- nates (determined without regard to any extension thereof agreed to after the date of the enactment of this Act), or ‘‘(B) January 1, 1988. For purposes of subparagraph (A), any plan amendment made pursuant to a collective bargaining agreement re- lating to the plan which amends the plan solely to con- form to any requirement added by this section shall not be treated as a termination of such collective bar- gaining agreement.’’ Pub. L. 98–369, div. A, title V, § 524(d)(2), July 18, 1984, 98 Stat. 872, provided that: ‘‘The amendment made by this subsection [amending this section] shall apply to plan years beginning after December 31, 1983.’’ Pub. L. 98–369, div. A, title V, § 527(c), July 18, 1984, 98 Stat. 876, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘(1) SUBSECTION (a).— ‘‘(A) IN GENERAL.—Except as provided in subpara- graph (B), the amendment made by subsection (a) [amending this section] shall apply to plan years be- ginning after December 31, 1984. ‘‘(B) EXCEPTION FOR CERTAIN EXISTING PLANS.—The amendment made by subsection (a) shall not apply to any plan— ‘‘(i) which was maintained by a State on June 8, 1984, and ‘‘(ii) with respect to which a determination letter had been issued by the Secretary on December 6, 1982. ‘‘(2) SUBSECTION (b).— ‘‘(A) IN GENERAL.—The amendments made by this section [amending this section] shall apply with re- spect to plan years beginning after the date of the en- actment of this Act [July 18, 1984]. ‘‘(B) TRANSITIONAL RULE.—Rules similar to the rules under section 135(c)(2) of the Revenue Act of 1978 [section 135(c)(2) of Pub. L. 95–600, set out below] shall apply with respect to any pre-ERISA money purchase plan (as defined in section 401(k)(5) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]) for plan years beginning after December 31, 1979, and on or before the date of the enactment of this Act.’’ Pub. L. 98–369, div. A, title V, § 528(c), July 18, 1984, 98 Stat. 877, provided that: ‘‘The amendments made by this section [amending this section and section 415 of this title] shall apply to years beginning after March 31, 1984.’’ Amendment by section 713 of Pub. L. 98–369 effective as if included in the provision of the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97–248, to which such amendment relates, see section 715 of Pub. L. 98–369, set out as a note under section 31 of this title. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98–21 applicable to taxable years beginning after Dec. 31, 1989, see section 124(d)(2) of Pub. L. 98–21, set out as a note under section 1401 of this title. Amendment by Pub. L. 97–448 effective, except as oth- erwise provided, as if it had been included in the provi- Page 1230 TITLE 26—INTERNAL REVENUE CODE § 401 sion of the Economic Recovery Tax Act of 1981, Pub. L. 97–34, to which such amendment relates, see section 109 of Pub. L. 97–448, set out as a note under section 1 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Pub. L. 97–248, title II, § 242(b), Sept. 3, 1982, 96 Stat. 521, which prescribed the effective date for amendment by section 242(a) of Pub. L. 97–248, was repealed by Pub. L. 98–369, div. A, title V, § 521(a)(2), July 18, 1984, 98 Stat. 867. Pub. L. 97–248, title II, § 249(b), Sept. 3, 1982, 96 Stat. 528, provided that: ‘‘The amendments made by this sec- tion [amending this section] shall apply to plan years beginning after December 31, 1983.’’ Pub. L. 97–248, title II, § 254(b), Sept. 3, 1982, 96 Stat. 533, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply with re- spect to taxable years beginning after December 31, 1981.’’ Amendment by sections 237, 238, and 240 of Pub. L. 97–248 applicable to years beginning after Dec. 31, 1983, see section 241 of Pub. L. 97–248, set out as an Effective Date note under section 416 of this title. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by section 312(b)(1), (c)(2)–(4), (e)(2) of Pub. L. 97–34 applicable to plans which include employ- ees within the meaning of subsec. (c)(1) of this section with respect to taxable years beginning after Dec. 31, 1981, see section 312(f)(1) of Pub. L. 97–34, set out as a note under section 72 of this title. Pub. L. 97–34, title III, § 314(a)(2), Aug. 13, 1981, 95 Stat. 286, provided that: ‘‘The amendment made by paragraph (1) [amending this section] shall apply to distributions after December 31, 1980, in taxable years beginning after such date.’’ Pub. L. 97–34, title III, § 338(b), Aug. 13, 1981, 95 Stat. 298, provided that: ‘‘The amendment made by this sec- tion [amending this section] shall apply to acquisitions of securities after December 31, 1979.’’ Pub. L. 97–34, title III, § 339, Aug. 13, 1981, 95 Stat. 299, provided that: ‘‘Except as otherwise provided, the amendments made by this subtitle [subtitle D (§§ 331–339) of title III of Pub. L. 97–34, enacting section 44G of this title and amending this section and sections 46, 48, 55, 56, 381, 383, 404, 409A, 415, 6096, 6411, 6511, and 6699 of this title] shall apply to taxable years beginning after December 31, 1981.’’ EFFECTIVE DATE OF 1980 AMENDMENT Pub. L. 96–605, title II, § 221(b), Dec. 28, 1980, 94 Stat. 3528, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply with re- spect to plan years beginning after December 31, 1980.’’ Pub. L. 96–605, title II, § 225(c), Dec. 28, 1980, 94 Stat. 3529, provided that: ‘‘The amendments made by this section [amending this section and sections 408 and 410 of this title] shall apply with respect to plan years be- ginning after December 31, 1980.’’ Pub. L. 96–364, title IV, § 410(c), Sept. 26, 1980, 94 Stat. 1308, provided that: ‘‘The amendment made by this sec- tion [amending this section and section 1103 of Title 29, Labor] shall take effect on January 1, 1975, except that in the case of contributions received by a collectively bargained plan maintained by more than one employer before the date of enactment of this Act [Sept. 26, 1980], any determination by the plan administrator that any such contribution was made by mistake of fact or law before such date shall be deemed to have been made on such date of enactment.’’ Amendment by section 208(a), (e) of Pub. L. 96–364 ef- fective Sept. 26, 1980, see section 210(a) of Pub. L. 96–364, set out as an Effective Date note under section 194A of this title. Amendment by Pub. L. 96–222 effective, except as oth- erwise provided, as if it had been included in the provi- sions of the Revenue Act of 1978, Pub. L. 95–600, to which such amendment relates, see section 201 of Pub. L. 96–222, set out as a note under section 32 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Pub. L. 95–600, title I, § 135(c)(1), Nov. 6, 1978, 92 Stat. 2787, provided that: ‘‘The amendments made by this section [amending this section and section 402 of this title] shall apply to plan years beginning after Decem- ber 31, 1979.’’ Amendment by section 141(f)(3) of Pub. L. 95–600 effec- tive with respect to qualified investment for taxable years beginning after Dec. 31, 1978, see section 141(g)(1) of Pub. L. 95–600, set out as an Effective Date note under section 409 of this title. Pub. L. 95–600, title I, § 143(b), Nov. 6, 1978, 92 Stat. 2796, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply to acqui- sitions of securities after December 31, 1979.’’ Amendment by section 152(e) of Pub. L. 95–600 appli- cable to taxable years beginning after Dec. 31, 1978, see section 152(h) of Pub. L. 95–600, set out as a note under section 408 of this title. EFFECTIVE DATE OF 1976 AMENDMENT Amendment by section 803(b)(2) of Pub. L. 94–455 ef- fective for taxable years beginning after Dec. 31, 1974, see section 803(j) of Pub. L. 94–455, set out as a note under section 46 of this title. Pub. L. 94–455, title XV, § 1505(c), Oct. 4, 1976, 90 Stat. 1739, provided that: ‘‘The amendments made by this section [amending this section and section 801 of this title] apply for taxable years beginning after December 31, 1975.’’ Amendment by section 1901(a)(56) of Pub. L. 94–455 ef- fective for taxable years beginning after Dec. 31, 1976, see section 1901(d) of Pub. L. 94–455, set out as a note under section 2 of this title. Pub. L. 94–267, § 1(e), Apr. 15, 1976, 90 Stat. 369, pro- vided that: ‘‘The amendments made by this Act [amending this section and sections 402 to 404 and 805 of this title, and enacting provisions set out as a note under section 402 of this title] shall apply with respect to payments made to an employee on or after July 4, 1974.’’ EFFECTIVE DATE OF 1974 AMENDMENT Amendment by sections 1012(b) and 1016(a)(2) of Pub. L. 93–406 applicable, except as otherwise provided in section 1017(c) through (i) of Pub. L. 93–406, for plan years beginning after Sept. 2, 1974, but, in the case of plans in existence on Jan. 1, 1974, amendment by sec- tions 1012(b) and 196(a)(2) of Pub. L. 93–406 applicable for plan years beginning after Dec. 31, 1975, see section 1017 of Pub. L. 93–406, set out as an Effective Date; Transi- tional Rules note under section 410 of this title. Pub. L. 93–406, title II, § 1021(a)(1), (b), Sept. 2, 1974, 88 Stat. 935, 937, provided that the amendment made by that section is effective with respect to plan years be- ginning after Dec. 31, 1975. Pub. L. 93–406, title II, § 1022(d), Sept. 2, 1974, 88 Stat. 939, provided that the amendment made by that section is effective as of Jan. 1, 1974. Pub. L. 93–406, title II, § 1022(f), Sept. 2, 1974, 88 Stat. 940, provided that the amendment made by that section is effective as of Jan. 1, 1974. Pub. L. 93–406, title II, § 1024, Sept. 2, 1974, 88 Stat. 943, provided that: ‘‘Except as otherwise provided in section 1021, the amendments made by section 1021 [amending this section] shall apply to plan years to which part I applies. [For description of plan years to which part I applies, see section 1017 of Pub. L. 93–406, set out as an Effective Date; Transitional Rules note under section 410 of this title.] Except as otherwise provided in sec- tion 1022, the amendments made by section 1022 [amending this section and section 6051 of this title] shall apply to plan years to which part I applies. Sec- tion 1023 [amending this section] shall take effect on the date of the enactment of this Act [Sept. 2, 1974].’’ Pub. L. 93–406, title II, § 2001(i)(2)–(4), Sept. 2, 1974, 88 Stat. 958, provided that: ‘‘(2) The amendments made by subsection (c) [amending this section] apply to Page 1231 TITLE 26—INTERNAL REVENUE CODE § 401 ‘‘(A) taxable years beginning after December 31, 1975, and ‘‘(B) any other taxable years beginning after De- cember 31, 1973, for which contributions were made under the plan in excess of the amounts permitted to be made under sections 404(e) and 1379(b) [of this title] as in effect on the day before the date of the enactment of this Act [Sept. 2, 1974]. ‘‘(3) The amendments made by subsection (d) [amending this section] apply to taxable years begin- ning after December 31, 1975. ‘‘(4) The amendments made by subsections (e) and (f) [enacting section 4972 of this title and amending this section and section 72 of this title] apply to con- tributions made in taxable years beginning after De- cember 31, 1975.’’ Amendment by section 2001(h)(1) of Pub. L. 93–406 ap- plicable to taxable years ending after Sept. 2, 1974, see section 2001(i)(6) of Pub. L. 93–406, set out as a note under section 72 of this title. Amendment by section 2004(a)(1) of Pub. L. 93–406 ap- plicable to years beginning after Dec. 31, 1975, see sec- tion 2004(d) of Pub. L. 93–406, set out as an Effective Date; Transitional Provisions note under section 415 of this title. EFFECTIVE DATE OF 1971 AMENDMENT Pub. L. 91–691, § 1(b), Jan. 12, 1971, 84 Stat. 2074, pro- vided that: ‘‘The amendments made by subsection (a) [amending this section] shall apply to taxable years be- ginning after December 31, 1953, and ending after Au- gust 16, 1954, but only with respect to contributions made after December 31, 1954.’’ EFFECTIVE DATE OF 1966 AMENDMENT Pub. L. 89–809, title II, § 204(d), Nov. 13, 1966, 80 Stat. 1578, as amended by Pub. L. 90–607, Oct. 21, 1968, 82 Stat. 1189; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, pro- vided that: ‘‘The amendments made by subsections (a) and (b) [amending this section and section 404 of this title] shall apply with respect to taxable years begin- ning after December 31, 1967. The amendment made by subsection (c) [amending this section] shall apply with respect to taxable years beginning after December 31, 1967, and in the case of a taxpayer who applies the aver- aging provisions of section 401(e)(3) of the Internal Rev- enue Code of 1986 [formerly I.R.C. 1954] for a taxable year beginning after December 31, 1967, the computa- tion of the amount deductible under section 404 of such Code for any prior taxable year which began before January 1, 1968, shall be made, for purposes of such averaging provisions, as if the amendment made by subsection (c) were applicable to such prior taxable year.’’ Pub. L. 89–809, title II, § 205(b), Nov. 13, 1966, 80 Stat. 1578, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply to tax- able years ending after the date of the enactment of this Act [Nov. 13, 1966].’’ EFFECTIVE DATE OF 1965 AMENDMENT Amendment by Pub. L. 89–97 applicable to taxable years beginning after Dec. 31, 1966, see section 106(e) of Pub. L. 89–97, set out as a note under section 213 of this title. EFFECTIVE DATE OF 1964 AMENDMENT Pub. L. 88–272, title II, § 219(b), Feb. 26, 1964, 78 Stat. 58, provided that: ‘‘The amendments made by sub- section (a) [amending this section] shall apply with re- spect to taxable years beginning after December 31, 1953, and ending after August 16, 1954, but only with re- spect to contributions made after December 31, 1954.’’ EFFECTIVE DATE OF 1962 AMENDMENT Pub. L. 87–863, § 2(c), Oct. 23, 1962, 76 Stat. 1142, pro- vided that: ‘‘The amendments made by subsections (a) and (b) [amending this section and section 404 of this title] shall apply to taxable years beginning after the date of the enactment of this Act [Oct. 23, 1962].’’ Amendment by Pub. L. 87–792 applicable to taxable years beginning after Dec. 31, 1962, see section 8 of Pub. L. 87–792, set out as a note under section 22 of this title. SHORT TITLE OF 1962 AMENDMENT Pub. L. 87–792, § 1, Oct. 10, 1962, 76 Stat. 809, provided: ‘‘That this Act [enacting sections 405 and 6047 of this title and amending this section and sections 37, 62, 72, 101, 104, 105, 172, 402 to 404, 503, 805, 1361, 2039, 2517, 3306, 3401, and 7207 of this title] may be cited as the ‘Self- Employed Individuals Tax Retirement Act of 1962’.’’ REGULATIONS Pub. L. 117–328, div. T, title I, § 110(g), Dec. 29, 2022, 136 Stat. 5293, provided that: ‘‘The Secretary of the Treas- ury (or such Secretary’s delegate) shall prescribe regu- lations for purposes of implementing the amendments made by this section, including regulations— ‘‘(1) permitting a plan to make matching contribu- tions for qualified student loan payments, as defined in sections 401(m)(4)(D) and 408(p)(2)(F) of the Inter- nal Revenue Code of 1986, as added by this section, at a different frequency than matching contributions are otherwise made under the plan, provided that the frequency is not less than annually; ‘‘(2) permitting employers to establish reasonable procedures to claim matching contributions for such qualified student loan payments under the plan, in- cluding an annual deadline (not earlier than 3 months after the close of each plan year) by which a claim must be made; and ‘‘(3) promulgating model amendments which plans may adopt to implement matching contributions on such qualified student loan payments for purposes of sections 401(m), 408(p), 403(b), and 457(b) of the Inter- nal Revenue Code of 1986.’’ Pub. L. 117–328, div. T, title II, § 202, Dec. 29, 2022, 136 Stat. 5331, provided that: ‘‘(a) IN GENERAL.—Not later than the date which is 18 months after the date of the enactment of this Act [Dec. 29, 2022], the Secretary of the Treasury (or the Secretary’s delegate) shall amend the regulation issued by the Department of the Treasury relating to ‘Lon- gevity Annuity Contracts’ (79 Fed. Reg. 37633 (July 2, 2014)), as follows: ‘‘(1) REPEAL 25-PERCENT PREMIUM LIMIT.—The Sec- retary (or delegate) shall amend Q&A–17(b)(3) of Treas. Reg. section 1.401(a)(9)–6 and Q&A–12(b)(3) of Treas. Reg. section 1.408–8 to eliminate the require- ment that premiums for qualifying longevity annuity contracts be limited to 25 percent of an individual’s account balance, and to make such corresponding changes to the regulations and related forms as are necessary to reflect the elimination of this require- ment. ‘‘(2) INCREASE DOLLAR LIMITATION.— ‘‘(A) IN GENERAL.—The Secretary (or delegate) shall amend Q&A–17(b)(2)(i) of Treas. Reg. section 1.401(a)(9)–6 and Q&A–12(b)(2)(i) of Treas. Reg. sec- tion 1.408–8 to increase the dollar limitation on pre- miums for qualifying longevity annuity contracts from $125,000 to $200,000, and to make such cor- responding changes to the regulations and related forms as are necessary to reflect this increase in the dollar limitation. ‘‘(B) ADJUSTMENTS FOR INFLATION.—The Secretary (or delegate) shall amend Q&A–17(d)(2)(i) of Treas. Reg. section 1.401(a)(9)–6 to provide that, in the case of calendar years beginning on or after January 1 of the second year following the year of enactment of this Act [div. T of Pub. L. 117–328, enacted in 2022], the $200,000 dollar limitation (as increased by sub- paragraph (A)) will be adjusted at the same time and in the same manner as the limits are adjusted under section 415(d) of the Internal Revenue Code of 1986, except that the base period shall be the cal- endar quarter beginning July 1 of the year of enact- Page 1232 TITLE 26—INTERNAL REVENUE CODE § 401 ment of this Act, and any increase to such dollar limitation which is not a multiple of $10,000 will be rounded to the next lowest multiple of $10,000. ‘‘(3) FACILITATE JOINT AND SURVIVOR BENEFITS.—The Secretary (or delegate) shall amend Q&A–17(c) of Treas. Reg. section 1.401(a)(9)–6, and make such cor- responding changes to the regulations and related forms as are necessary, to provide that, in the case of a qualifying longevity annuity contract which was purchased with joint and survivor annuity benefits for the individual and the individual’s spouse which were permissible under the regulations at the time the contract was originally purchased, a divorce oc- curring after the original purchase and before the an- nuity payments commence under the contract will not affect the permissibility of the joint and survivor annuity benefits or other benefits under the contract, or require any adjustment to the amount or duration of benefits payable under the contract, provided that any qualified domestic relations order (within the meaning of section 414(p) of the Internal Revenue Code of 1986) or, in the case of an arrangement not subject to section 414(p) of such Code or section 206(d) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1056(d)], any divorce or separation in- strument (as defined in subsection (b))— ‘‘(A) provides that the former spouse is entitled to the survivor benefits under the contract; ‘‘(B) provides that the former spouse is treated as a surviving spouse for purposes of the contract; ‘‘(C) does not modify the treatment of the former spouse as the beneficiary under the contract who is entitled to the survivor benefits; or ‘‘(D) does not modify the treatment of the former spouse as the measuring life for the survivor bene- fits under the contract. ‘‘(4) PERMIT SHORT FREE LOOK PERIOD.—The Sec- retary (or delegate) shall amend Q&A–17(a)(4) of Treas. Reg. section 1.401(a)(9)–6 to ensure that such Q&A does not preclude a contract from including a provision under which an employee may rescind the purchase of the contract within a period not exceed- ing 90 days from the date of purchase. ‘‘(b) DIVORCE OR SEPARATION INSTRUMENT.—For pur- poses of subsection (a)(3), the term ‘divorce or separa- tion instrument’ means— ‘‘(1) a decree of divorce or separate maintenance or a written instrument incident to such a decree; ‘‘(2) a written separation agreement; or ‘‘(3) a decree (not described in paragraph (1)) requir- ing a spouse to make payments for the support or maintenance of the other spouse. ‘‘(c) EFFECTIVE DATES, ENFORCEMENT, AND INTERPRE- TATIONS.— ‘‘(1) EFFECTIVE DATES.— ‘‘(A) Paragraphs (1) and (2) of subsection (a) shall be effective with respect to contracts purchased or received in an exchange on or after the date of the enactment of this Act. ‘‘(B) Paragraphs (3) and (4) of subsection (a) shall be effective with respect to contracts purchased or received in an exchange on or after July 2, 2014. ‘‘(2) ENFORCEMENT AND INTERPRETATIONS.—Prior to the date on which the Secretary of the Treasury issues final regulations pursuant to subsection (a)— ‘‘(A) the Secretary (or delegate) shall administer and enforce the law in accordance with subsection (a) and the effective dates in paragraph (1) of this subsection; and ‘‘(B) taxpayers may rely upon their reasonable good faith interpretations of subsection (a). ‘‘(d) REGULATORY SUCCESSOR PROVISION.—Any ref- erence to a regulation under this section shall be treat- ed as including a reference to any successor regulation thereto.’’ Pub. L. 117–328, div. T, title II, § 204, Dec. 29, 2022, 136 Stat. 5334, provided that: ‘‘(a) ELIMINATING A PENALTY ON PARTIAL ANNUITIZATION.—The Secretary of the Treasury (or the Secretary’s delegate) shall amend the regulations under section 401(a)(9) of the Internal Revenue Code of 1986 to provide that if an employee’s benefit is in the form of an individual account under a defined contribu- tion plan, the plan may allow the employee to elect to have the amount required to be distributed from such account under such section for a year to be calculated as the excess of the total required amount for such year over the annuity amount for such year. ‘‘(b) DEFINITIONS.—For purposes of this section— ‘‘(1) TOTAL REQUIRED AMOUNT.—The term ‘total re- quired amount’, with respect to a year, means the amount which would be required to be distributed under Treas. Reg. section 1.401(a)(9)–5 (or any suc- cessor regulation) for the year, determined by treat- ing the account balance as of the last valuation date in the immediately preceding calendar year as in- cluding the value on that date of all annuity con- tracts which were purchased with a portion of the ac- count and from which payments are made in accord- ance with Treas. Reg. section 1.401(a)(9)–6. ‘‘(2) ANNUITY AMOUNT.—The term ‘annuity amount’, with respect to a year, is the total amount distrib- uted in the year from all annuity contracts described in paragraph (1). ‘‘(c) CONFORMING REGULATORY AMENDMENTS.—The Secretary of the Treasury (or the Secretary’s delegate) shall amend the regulations under sections 403(b)(10), 408(a)(6), 408(b)(3), and 457(d)(2) of the Internal Revenue Code of 1986 to conform to the amendments described in subsection (a). Such conforming amendments shall treat all individual retirement plans (as defined in sec- tion 7701(a)(37) of such Code) which an individual holds as the owner, or which an individual holds as a bene- ficiary of the same decedent, as one such plan for pur- poses of the amendments described in subsection (a). Such conforming amendments shall also treat all con- tracts described in section 403(b) of such Code which an individual holds as an employee, or which an individual holds as a beneficiary of the same decedent, as one such contract for such purposes. ‘‘(d) EFFECTIVE DATE.—The modifications and amend- ments required under subsections (a) and (c) shall be deemed to have been made as of the date of the enact- ment of this Act [Dec. 29, 2022], and as of such date— ‘‘(1) all applicable laws shall be applied in all re- spects as though the actions which the Secretary of the Treasury (or the Secretary’s delegate) is required to take under such subsections had been taken, and ‘‘(2) until such time as such actions are taken, tax- payers may rely upon their reasonable good faith in- terpretations of this section.’’ Pub. L. 117–328, div. T, title III, § 327(b), Dec. 29, 2022, 136 Stat. 5360, provided that: ‘‘The Secretary shall amend Q&A–5(a) of Treasury Regulation section 1.401(a)(9)–5 (or any successor regulation thereto) to provide that if the surviving spouse is the employee’s sole designated beneficiary and the spouse elects treat- ment under section 401(a)(9)(B)(iv), then the applicable distribution period for distribution calendar years after the distribution calendar year including the employee’s date of death is determined under the uniform lifetime table.’’ Pub. L. 117–328, div. T, title III, § 341, Dec. 29, 2022, 136 Stat. 5375, provided that: ‘‘Not later than 2 years after the date of enactment of this Act [Dec. 29, 2022], the Secretary of Labor and the Secretary of the Treasury (or such Secretaries’ delegates) shall adopt regulations providing that a plan (as defined in section 3 of the Em- ployee Retirement Income Security Act of 1974 (29 U.S.C. 1002)) may, but is not required to, consolidate 2 or more of the notices required under sections 404(c)(5)(B) and 514(e)(3) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1104(c)(5)(B) and 29 U.S.C. 1144(e)(3)) and sections 401(k)(12)(D), 401(k)(13)(E), and 414(w)(4) of the Internal Revenue Code of 1986 into a single notice so long as the combined no- tice— ‘‘(1) includes the required content; ‘‘(2) clearly identifies the issues addressed therein; ‘‘(3) is furnished at the time and with the frequency required for each such notice; and Page 1233 TITLE 26—INTERNAL REVENUE CODE § 401 ‘‘(4) is presented in a manner that is reasonably cal- culated to be understood by the average plan partici- pant and that does not obscure or fail to highlight the primary information required for each notice. This section shall not be interpreted as preventing the consolidation of any other notices required under the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1001 et seq.], or Internal Revenue Code of 1986, to the extent otherwise permitted by the Secretary of Labor or the Secretary of the Treasury (or either such Secretary’s delegate), as applicable.’’ Pub. L. 115–123, div. D, title II, § 41113, Feb. 9, 2018, 132 Stat. 161, provided that: ‘‘(a) IN GENERAL.—Not later than 1 year after the date of the enactment of this Act [Feb. 9, 2018], the Sec- retary of the Treasury shall modify Treasury Regula- tion section 1.401(k)–1(d)(3)(iv)(E) to— ‘‘(1) delete the 6-month prohibition on contribu- tions imposed by paragraph (2) thereof, and ‘‘(2) make any other modifications necessary to carry out the purposes of section 401(k)(2)(B)(i)(IV) of the Internal Revenue Code of 1986. ‘‘(b) EFFECTIVE DATE.—The revised regulations under this section shall apply to plan years beginning after December 31, 2018.’’ Pub. L. 109–280, title VIII, § 823, Aug. 17, 2006, 120 Stat. 998, provided that: ‘‘The Secretary of the Treasury shall issue regulations under which a governmental plan (as defined in section 414(d) of the Internal Rev- enue Code of 1986) shall, for all years to which section 401(a)(9) of such Code applies to such plan, be treated as having complied with such section 401(a)(9) if such plan complies with a reasonable good faith interpretation of such section 401(a)(9).’’ Pub. L. 109–280, title VIII, § 826, Aug. 17, 2006, 120 Stat. 999, provided that: ‘‘Within 180 days after the date of the enactment of this Act [Aug. 17, 2006], the Secretary of the Treasury shall modify the rules for determining whether a participant has had a hardship for purposes of section 401(k)(2)(B)(i)(IV) of the Internal Revenue Code of 1986 to provide that if an event (including the occurrence of a medical expense) would constitute a hardship under the plan if it occurred with respect to the participant’s spouse or dependent (as defined in sec- tion 152 of such Code), such event shall, to the extent permitted under a plan, constitute a hardship if it oc- curs with respect to a person who is a beneficiary under the plan with respect to the participant. The Secretary of the Treasury shall issue similar rules for purposes of determining whether a participant has had— ‘‘(1) a hardship for purposes of section 403(b)(11)(B) of such Code; or ‘‘(2) an unforeseen financial emergency for purposes of sections 409A(a)(2)(A)(vi), 409A(a)(2)(B)(ii), and 457(d)(1)(A)(iii) of such Code.’’ Pub. L. 107–16, title VI, § 657(c)(2), June 7, 2001, 115 Stat. 136, provided that: ‘‘(A) AUTOMATIC ROLLOVER SAFE HARBOR.—Not later than 3 years after the date of enactment of this Act [June 7, 2001], the Secretary of Labor shall prescribe regulations providing for safe harbors under which the designation of an institution and investment of funds in accordance with section 401(a)(31)(B) of the Internal Revenue Code of 1986 is deemed to satisfy the fiduciary requirements of section 404(a) of the Employee Retire- ment Income Security Act of 1974 (29 U.S.C. 1104(a)). ‘‘(B) USE OF LOW-COST INDIVIDUAL RETIREMENT PLANS.—The Secretary of the Treasury and the Sec- retary of Labor may provide, and shall give consider- ation to providing, special relief with respect to the use of low-cost individual retirement plans for purposes of transfers under section 401(a)(31)(B) of the Internal Revenue Code of 1986 and for other uses that promote the preservation of assets for retirement income pur- poses.’’ Pub. L. 99–514, title XI, § 1141, Oct. 22, 1986, 100 Stat. 2490, provided that: ‘‘The Secretary of the Treasury or his delegate shall issue before February 1, 1988, such final regulations as may be necessary to carry out the amendments made by— ‘‘(1) section 1111 [amending this section], relating to application of nondiscrimination rules to integrated plans, ‘‘(2) section 1112 [amending this section and sec- tions 402, 404, 406, 407, 410, and 818 of this title], relat- ing to coverage requirements for qualified plans, ‘‘(3) section 1113 [amending sections 410 and 411 of this title and sections 1052 to 1054 of Title 29, Labor], relating to minimum vesting standards, ‘‘(4) section 1114 [amending this section, sections 106, 117, 120, 127, 129, 132, 274, 404A, 406, 407, 411, 414, 415, 423, 501, 505, and 4975 of this title, and section 1108 of Title 29], relating to the definition of highly com- pensated employee, ‘‘(5) section 1115 [amending section 414 of this title], relating to separate lines of business and the defini- tion of compensation, ‘‘(6) section 1116 [amending this section], relating to rules for section 401(k) plans, ‘‘(7) section 1117 [enacting section 4979 of this title and amending this section and section 414 of this title], relating to nondiscrimination requirements for employer matching and employer contribution, ‘‘(8) section 1120 [amending section 403 of this title], relating to nondiscrimination requirements for tax sheltered annuities, and ‘‘(9) section 1133 [enacting section 4981A [now 4980A] of this title], relating to tax on excess distributions.’’ REPORTS BY SECRETARY Pub. L. 117–328, div. T, title I, § 117(i), Dec. 29, 2022, 136 Stat. 5301, provided that: ‘‘(1) IN GENERAL.—The Secretary of the Treasury shall, not later than December 31, 2024, and annually thereafter, report to the Committees on Finance and Health, Education, Labor, and Pensions of the Senate and the Committees on Ways and Means and Education and Labor [now Committee on Education and the Workforce] of the House of Representatives on the data described in paragraph (2), together with any rec- ommendations the Secretary deems appropriate. ‘‘(2) DATA DESCRIBED.—For purposes of the report re- quired under paragraph (1), the Secretary of the Treas- ury shall collect data and information on— ‘‘(A) the number of plans described in section 408(p) or 401(k)(11) of the Internal Revenue Code of 1986 that are maintained or established during a year; ‘‘(B) the number of participants eligible to partici- pate in such plans for such year; ‘‘(C) median contribution amounts for the partici- pants described in subparagraph (B); ‘‘(D) the types of investments that are most com- mon under such plans; and ‘‘(E) the fee levels charged in connection with the maintenance of accounts under such plans. Such data and information shall be collected sepa- rately for each type of plan. For purposes of collecting such data, the Secretary of the Treasury may use such data as is otherwise available to the Secretary for pub- lication and may use such approaches as are appro- priate under the circumstances, including the use of voluntary surveys and collaboration on studies.’’ EXPANSION OF EMPLOYEE PLANS COMPLIANCE RESOLUTION SYSTEM Pub. L. 117–328, div. T, title III, § 305, Dec. 29, 2022, 136 Stat. 5341, provided that: ‘‘(a) IN GENERAL.—Except as otherwise provided in the Internal Revenue Code of 1986, regulations, or other guidance of general applicability prescribed by the Sec- retary of the Treasury or the Secretary’s delegate (re- ferred to in this section as the ‘Secretary’), any eligible inadvertent failure to comply with the rules applicable under section 401(a), 403(a), 403(b), 408(p), or 408(k) of such Code may be self-corrected under the Employee Plans Compliance Resolution System (as described in Revenue Procedure 2021–30, or any successor guidance, and hereafter in this section referred to as the ‘EPCRS’), except to the extent that (1) such failure was Page 1234 TITLE 26—INTERNAL REVENUE CODE § 401 identified by the Secretary prior to any actions which demonstrate a specific commitment to implement a self-correction with respect to such failure, or (2) the self-correction is not completed within a reasonable pe- riod after such failure is identified. For purposes of self-correction of an eligible inadvertent failure, the correction period under section 9.02 of Revenue Proce- dure 2021–30 (or any successor guidance), except as oth- erwise provided under such Code, regulations, or other guidance of general applicability prescribed by the Sec- retary, is indefinite and has no last day, other than with respect to failures identified by the Secretary prior to any actions which demonstrate a specific com- mitment to implement a self-correction with respect to such failure or with respect to a self-correction that is not completed within a reasonable period, as described in the preceding sentence. ‘‘(b) LOAN ERRORS.—In the case of an eligible inad- vertent failure relating to a loan from a plan to a par- ticipant— ‘‘(1) such failure may be self-corrected under sub- section (a) according to the rules of section 6.07 of Revenue Procedure 2021–30 (or any successor guid- ance), including the provisions related to whether a deemed distribution must be reported on Form 1099–R, ‘‘(2) the Secretary of Labor shall treat any such failure which is so self-corrected under subsection (a) as meeting the requirements of the Voluntary Fidu- ciary Correction Program of the Department of Labor if, with respect to the violation of the fiduciary standards of the Employee Retirement Income Secu- rity Act of 1974 [29 U.S.C. 1001 et seq.], there is a simi- lar loan error eligible for correction under EPCRS and the loan error is corrected in such manner, and ‘‘(3) the Secretary of Labor may impose reporting or other procedural requirements with respect to par- ties that intend to rely on the Voluntary Fiduciary Correction Program for self-corrections described in paragraph (2). ‘‘(c) EPCRS FOR IRAS.—The Secretary shall expand the EPCRS to allow custodians of individual retire- ment plans (as defined in section 7701(a)(37) of the In- ternal Revenue Code of 1986) to address eligible inad- vertent failures with respect to an individual retire- ment plan (as so defined), including (but not limited to)— ‘‘(1) waivers of the excise tax which would other- wise apply under section 4974 of the Internal Revenue Code of 1986, and ‘‘(2) rules permitting a nonspouse beneficiary to re- turn distributions to an inherited individual retire- ment plan described in section 408(d)(3)(C) of the In- ternal Revenue Code of 1986 in a case where, due to an inadvertent error by a service provider, the bene- ficiary had reason to believe that the distribution could be rolled over without inclusion in income of any part of the distributed amount. ‘‘(d) CORRECTION METHODS FOR ELIGIBLE INADVERTENT FAILURES.—The Secretary shall issue guidance on cor- rection methods that are required to be used to correct eligible inadvertent failures, including general prin- ciples of correction if a specific correction method is not specified by the Secretary. ‘‘(e) ELIGIBLE INADVERTENT FAILURE.—For purposes of this section— ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), the term ‘eligible inadvertent failure’ means a failure that occurs despite the existence of practices and procedures which— ‘‘(A) satisfy the standards set forth in section 4.04 of Revenue Procedure 2021–30 (or any successor guidance), or ‘‘(B) satisfy similar standards in the case of an in- dividual retirement plan. ‘‘(2) EXCEPTION.—The term ‘eligible inadvertent failure’ shall not include any failure which is egre- gious, relates to the diversion or misuse of plan as- sets, or is directly or indirectly related to an abusive tax avoidance transaction. ‘‘(f) APPLICATION OF CERTAIN REQUIREMENTS FOR COR- RECTING ERRORS.—This section shall not apply to any failure unless the correction of such failure under this section is made in conformity with the general prin- ciples that apply to corrections of such failures under the Internal Revenue Code of 1986, including regula- tions or other guidance issued thereunder and including those principles and corrections set forth in Revenue Procedure 2021–30 (or any successor guidance). ‘‘(g) ISSUANCE OF GUIDANCE.—The Secretary of the Treasury, or the Secretary’s delegate, shall revise Rev- enue Procedure 2021–30 (or any successor guidance) to take into account the provisions of this section not later than the date which is 2 years after the date of en- actment of this Act [Dec. 29, 2022].’’ DISCLOSURE TO TREASURY OF LONG-TERM CARE INSURANCE PRODUCTS Pub. L. 117–328, div. T, title III, § 334(f), Dec. 29, 2022, 136 Stat. 5372, provided that: ‘‘The Secretary of the Treasury (or the Secretary’s delegate) shall issue such forms and guidance as are necessary to collect the fil- ing required by section 401(a)(39)(E)(iii) of the Internal Revenue Code of 1986, as added by this section.’’ SPECIAL RULES FOR MULTIPLE EMPLOYER PLANS OF CERTAIN COOPERATIVES Pub. L. 109–280, title I, § 104, Aug. 17, 2006, 120 Stat. 816, as amended by Pub. L. 111–192, title II, § 202(b), June 25, 2010, 124 Stat. 1298; Pub. L. 113–97, title I, § 103(b), Apr. 7, 2014, 128 Stat. 1117, provided that: ‘‘(a) GENERAL RULE.—Except as provided in this sec- tion, if a plan in existence on July 26, 2005, was an eligi- ble cooperative plan or an eligible charity plan for its plan year which includes such date, the amendments made by this subtitle [subtitle A (§§ 101 to 108) of title I of Pub. L. 109–280, enacting sections 1082 and 1083 of Title 29, Labor, amending sections 1021, 1023, 1053, 1054, 1056, 1103, 1108, 1132, 1301, 1303, 1310, 1362, 1371, and 1423 of Title 29 and section 106 of 1978 Reorg. Plan No. 4, set out in the Appendix to Title 5, Government Organiza- tion and Employees, and as a note under section 1001 of Title 29, and repealing sections 1057, 1082 to 1086 of Title 29] and subtitle B [subtitle B (§§ 111 to 116) of title I of Pub. L. 109–280, enacting sections 430 and 436 of this title, amending this section and sections 409A, 411, 412, 414, 420, 4971, 4972, and 6059 of this title, and amending provisions set out as a note under section 412 of this title] shall not apply to plan years beginning before the earlier of— ‘‘(1) the first plan year for which the plan ceases to be an eligible cooperative plan or an eligible charity plan, or ‘‘(2) January 1, 2017. ‘‘(b) INTEREST RATE.—In applying section 302(b)(5)(B) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1082(b)(5)(B)] and section 412(b)(5)(B) of the Internal Revenue Code of 1986 (as in effect before the amendments made by this subtitle and subtitle B) to an eligible cooperative plan or an eligible charity plan for plan years beginning after December 31, 2007, and before the first plan year to which such amend- ments apply, the third segment rate determined under section 303(h)(2)(C)(iii) of such Act [29 U.S.C. 1083(h)(2)(C)(iii)] and section 430(h)(2)(C)(iii) of such Code (as added by such amendments) shall be used in lieu of the interest rate otherwise used. ‘‘(c) ELIGIBLE COOPERATIVE PLAN DEFINED.—For pur- poses of this section, a plan shall be treated as an eligi- ble cooperative plan for a plan year if the plan is main- tained by more than 1 employer and at least 85 percent of the employers are— ‘‘(1) rural cooperatives (as defined in section 401(k)(7)(B) of such Code without regard to clause (iv) thereof), or ‘‘(2) organizations which are— ‘‘(A) cooperative organizations described in sec- tion 1381(a) of such Code which are more than 50- percent owned by agricultural producers or by co- operatives owned by agricultural producers, or Page 1235 TITLE 26—INTERNAL REVENUE CODE § 401 ‘‘(B) more than 50-percent owned, or controlled by, one or more cooperative organizations described in subparagraph (A). A plan shall also be treated as an eligible cooperative plan for any plan year for which it is described in sec- tion 210(a) of the Employee Retirement Income Secu- rity Act of 1974 [29 U.S.C. 1060(a)] and is maintained by a rural telephone cooperative association described in section 3(40)(B)(v) of such Act [29 U.S.C. 1002(40)(B)(v)]. ‘‘(d) ELIGIBLE CHARITY PLAN DEFINED.— ‘‘(1) IN GENERAL.—For purposes of this section, a plan shall be treated as an eligible charity plan for a plan year if the plan is maintained by more than one employer (determined without regard to section 414(c) of the Internal Revenue Code) and 100 percent of the employers are described in section 501(c)(3) of such Code. ‘‘(2) ELECTION NOT TO BE AN ELIGIBLE CHARITY PLAN.—A plan sponsor may elect for a plan to cease to be treated as an eligible charity plan for plan years beginning after December 31, 2013. Such elec- tion shall be made at such time and in such form and manner as shall be prescribed by the Secretary of the Treasury. Any such election may be revoked only with the consent of the Secretary of the Treasury. ‘‘(3) ELECTION TO USE FUNDING OPTIONS AVAILABLE TO OTHER PLAN SPONSORS.— ‘‘(A) A plan sponsor that makes the election de- scribed in paragraph (2) may elect for a plan to apply the rules described in subparagraphs (B), (C), and (D) for plan years beginning after December 31, 2013. Such election shall be made at such time and in such form and manner as shall be prescribed by the Secretary of the Treasury. Any such election may be revoked only with the consent of the Sec- retary of the Treasury. ‘‘(B) Under the rules described in this subpara- graph, for the first plan year beginning after De- cember 31, 2013, a plan has— ‘‘(i) an 11-year shortfall amortization base, ‘‘(ii) a 12-year shortfall amortization base, and ‘‘(iii) a 7-year shortfall amortization base. ‘‘(C) Under the rules described in this subpara- graph, section 303(c)(2)(A) and (B) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1083(c)(2)(A), (B)], and section 430(c)(2)(A) and (B) of the Internal Revenue Code of 1986 shall be applied by— ‘‘(i) in the case of an 11-year shortfall amortiza- tion base, substituting ‘11-plan-year period’ for ‘7- plan-year period’ wherever such phrase appears, and ‘‘(ii) in the case of a 12-year shortfall amortiza- tion base, substituting ‘12-plan-year period’ for ‘7- plan-year period’ wherever such phrase appears. ‘‘(D) Under the rules described in this subpara- graph, section 303(c)(7) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1083(c)(7)] and section 430(c)(7) of the Internal Revenue Code of 1986 shall apply to a plan for which an election has been made under subparagraph (A). Such provisions shall apply in the following manner: ‘‘(i) The first plan year beginning after Decem- ber 31, 2013, shall be treated as an election year, and no other plan years shall be so treated. ‘‘(ii) All references in section 303(c)(7) of such Act [29 U.S.C. 1083(c)(7)] and section 430(c)(7) of such Code to ‘February 28, 2010’ or ‘March 1, 2010’ shall be treated as references to ‘February 28, 2013’ or ‘March 1, 2013’, respectively. ‘‘(E) For purposes of this paragraph, the 11-year amortization base is an amount, determined for the first plan year beginning after December 31, 2013, equal to the unamortized principal amount of the shortfall amortization base (as defined in section 303(c)(3) of the Employee Retirement Income Secu- rity Act of 1974 [29 U.S.C. 1083(c)(3)] and section 430(c)(3) of the Internal Revenue Code of 1986) that would have applied to the plan for the first plan be- ginning after December 31, 2009, if— ‘‘(i) the plan had never been an eligible charity plan, ‘‘(ii) the plan sponsor had made the election de- scribed in section 303(c)(2)(D)(i) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1083(c)(2)(D)(i)] and in section 430(c)(2)(D)(i) of the Internal Revenue Code of 1986 to have section 303(c)(2)(D)(i) of such Act and section 430(c)(2)(D)(iii) of such Code apply with respect to the shortfall amortization base for the first plan year beginning after December 31, 2009, and ‘‘(iii) no event had occurred under paragraph (6) or (7) of section 303(c) of such Act [29 U.S.C. 1083(c)(6), (7)] or paragraph (6) or (7) of section 430(c) of such Code that, as of the first day of the first plan year beginning after December 31, 2013, would have modified the shortfall amortization base or the shortfall amortization installments with respect to the first plan year beginning after December 31, 2009. ‘‘(F) For purposes of this paragraph, the 12-year amortization base is an amount, determined for the first plan year beginning after December 31, 2013, equal to the unamortized principal amount of the shortfall amortization base (as defined in section 303(c)(3) of the Employee Retirement Income Secu- rity Act of 1974 [29 U.S.C. 1083(c)(3)] and section 430(c)(3) of the Internal Revenue Code of 1986) that would have applied to the plan for the first plan be- ginning after December 31, 2010, if— ‘‘(i) the plan had never been an eligible charity plan, ‘‘(ii) the plan sponsor had made the election de- scribed in section 303(c)(2)(D)(i) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1083(c)(2)(D)(i)] and in section 430(c)(2)(D)(i) of the Internal Revenue Code of 1986 to have section 303(c)(2)(D)(i) of such Act and section 430(c)(2)(D)(iii) of such Code apply with respect to the shortfall amortization base for the first plan year beginning after December 31, 2010, and ‘‘(iii) no event had occurred under paragraph (6) or (7) of section 303(c) of such Act [29 U.S.C. 1083(c)(6), (7)] or paragraph (6) or (7) of section 430(c) of such Code that, as of the first day of the first plan year beginning after December 31, 2013, would have modified the shortfall amortization base or the shortfall amortization installments with respect to the first plan year beginning after December 31, 2010. ‘‘(G) For purposes of this paragraph, the 7-year shortfall amortization base is an amount, deter- mined for the first plan year beginning after De- cember 31, 2013, equal to— ‘‘(i) the shortfall amortization base for the first plan year beginning after December 31, 2013, with- out regard to this paragraph, minus ‘‘(ii) the sum of the 11-year shortfall amortiza- tion base and the 12-year shortfall amortization base. ‘‘(4) RETROACTIVE ELECTION.—Not later than Decem- ber 31, 2014, a plan sponsor may make a one-time, ir- revocable, retroactive election to not be treated as an eligible charity plan. Such election shall be effective for plan years beginning after December 31, 2007, and shall be made by providing reasonable notice to the Secretary of the Treasury.’’ [Pub. L. 111–192, title II, § 202(c)(2), June 25, 2010, 124 Stat. 1299, provided that: ‘‘The amendments made by subsection (b) [amending section 104 of Pub. L. 109–280, set out above] shall apply to plan years beginning after December 31, 2007, except that a plan sponsor may elect to apply such amendments to plan years beginning after December 31, 2008. Any such election shall be made at such time, and in such form and manner, as shall be prescribed by the Secretary of the Treasury, and may be revoked only with the consent of the Sec- retary of the Treasury.’’] Page 1236 TITLE 26—INTERNAL REVENUE CODE § 401 TEMPORARY RELIEF FOR CERTAIN PBGC SETTLEMENT PLANS Pub. L. 109–280, title I, § 105, Aug. 17, 2006, 120 Stat. 817, provided that: ‘‘(a) GENERAL RULE.—Except as provided in this sec- tion, if a plan in existence on July 26, 2005, was a PBGC settlement plan as of such date, the amendments made by this subtitle [subtitle A (§§ 101 to 108) of title I of Pub. L. 109–280, enacting sections 1082 and 1083 of Title 29, Labor, amending sections 1021, 1023, 1053, 1054, 1056, 1103, 1108, 1132, 1301, 1303, 1310, 1362, 1371, and 1423 of Title 29 and section 106 of 1978 Reorg. Plan No. 4, set out in the Appendix to Title 5, Government Organiza- tion and Employees, and as a note under section 1001 of Title 29, and repealing sections 1057, 1082 to 1086 of Title 29] and subtitle B [subtitle B (§§ 111 to 116) of title I of Pub. L. 109–280, enacting sections 430 and 436 of this title, amending this section and sections 409A, 411, 412, 414, 420, 4971, 4972, and 6059 of this title, and amending provisions set out as a note under section 412 of this title] shall not apply to plan years beginning before January 1, 2014. ‘‘(b) INTEREST RATE.—In applying section 302(b)(5)(B) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1082(b)(5)(B)] and section 412(b)(5)(B) of the Internal Revenue Code of 1986 (as in effect before the amendments made by this subtitle and subtitle B), to a PBGC settlement plan for plan years beginning after December 31, 2007, and before January 1, 2014, the third segment rate determined under section 303(h)(2)(C)(iii) of such Act [29 U.S.C. 1083(h)(2)(C)(iii)] and section 430(h)(2)(C)(iii) of such Code (as added by such amendments) shall be used in lieu of the interest rate otherwise used. ‘‘(c) PBGC SETTLEMENT PLAN.—For purposes of this section, the term ‘PBGC settlement plan’ means a de- fined benefit plan (other than a multiemployer plan) to which section 302 of such Act [29 U.S.C. 1082] and sec- tion 412 of such Code apply and— ‘‘(1) which was sponsored by an employer which was in bankruptcy, giving rise to a claim by the Pension Benefit Guaranty Corporation of not greater than $150,000,000, and the sponsorship of which was as- sumed by another employer that was not a member of the same controlled group as the bankrupt sponsor and the claim of the Pension Benefit Guaranty Cor- poration was settled or withdrawn in connection with the assumption of the sponsorship, or ‘‘(2) which, by agreement with the Pension Benefit Guaranty Corporation, was spun off from a plan sub- sequently terminated by such Corporation under sec- tion 4042 of the Employee Retirement Income Secu- rity Act of 1974 [29 U.S.C. 1342].’’ SPECIAL RULES FOR PLANS OF CERTAIN GOVERNMENT CONTRACTORS Pub. L. 109–280, title I, § 106, Aug. 17, 2006, 120 Stat. 817, provided that: ‘‘(a) GENERAL RULE.—Except as provided in this sec- tion, if a plan is an eligible government contractor plan, this subtitle [subtitle A (§§ 101 to 108) of title I of Pub. L. 109–280, enacting sections 1082 and 1083 of Title 29, Labor, amending sections 1021, 1023, 1053, 1054, 1056, 1103, 1108, 1132, 1301, 1303, 1310, 1362, 1371, and 1423 of Title 29 and section 106 of 1978 Reorg. Plan No. 4, set out in the Appendix to Title 5, Government Organiza- tion and Employees, and as a note under section 1001 of Title 29, repealing sections 1057, 1082 to 1086 of Title 29, and enacting provisions set out as notes under this sec- tion and sections 1021, 1082, and 1083 of Title 29] and subtitle B [subtitle B (§§ 111 to 116) of title I of Pub. L. 109–280, enacting sections 430 and 436 of this title, amending this section and sections 409A, 411, 412, 414, 420, 4971, 4972, and 6059 of this title, enacting provisions set out as notes under sections 409A, 412, 430, and 436 of this title, and amending provisions set out as a note under section 412 of this title] shall not apply to plan years beginning before the earliest of— ‘‘(1) the first plan year for which the plan ceases to be an eligible government contractor plan, ‘‘(2) the effective date of the Cost Accounting Standards Pension Harmonization Rule, or ‘‘(3) January 1, 2011. ‘‘(b) INTEREST RATE.—In applying section 302(b)(5)(B) of the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1082(b)(5)(B)] and section 412(b)(5)(B) of the Internal Revenue Code of 1986 (as in effect before the amendments made by this subtitle and subtitle B) to an eligible government contractor plan for plan years beginning after December 31, 2007, and before the first plan year to which such amendments apply, the third segment rate determined under section 303(h)(2)(C)(iii) of such Act [29 U.S.C. 1083(h)(2)(C)(iii)] and section 430(h)(2)(C)(iii) of such Code (as added by such amendments) shall be used in lieu of the interest rate otherwise used. ‘‘(c) ELIGIBLE GOVERNMENT CONTRACTOR PLAN DE- FINED.—For purposes of this section, a plan shall be treated as an eligible government contractor plan if it is maintained by a corporation or a member of the same affiliated group (as defined by section 1504(a) of the Internal Revenue Code of 1986), whose primary source of revenue is derived from business performed under contracts with the United States that are subject to the Federal Acquisition Regulations (chapter 1 of title 48, CFR) and that are also subject to the Defense Federal Acquisition Regulation Supplement (chapter 2 of title 48, CFR), and whose revenue derived from such business in the previous fiscal year exceeded $5,000,000,000, and whose pension plan costs that are as- signable under those contracts are subject to sections 412 and 413 of the Cost Accounting Standards (48 CFR 9904.412 and 9904.413). ‘‘(d) COST ACCOUNTING STANDARDS PENSION HARMONI- ZATION RULE.—The Cost Accounting Standards Board shall review and revise sections 412 and 413 of the Cost Accounting Standards (48 CFR 9904.412 and 9904.413) to harmonize the minimum required contribution under the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1001 et seq.] of eligible government con- tractor plans and government reimbursable pension plan costs not later than January 1, 2010. Any final rule adopted by the Cost Accounting Standards Board shall be deemed the Cost Accounting Standards Pension Har- monization Rule.’’ APPLICATION OF EXTENDED AMORTIZATION PERIODS TO PLANS WITH DELAYED EFFECTIVE DATE Pub. L. 109–280, title I, § 107, as added by Pub. L. 111–192, title II, § 202(a), June 25, 2010, 124 Stat. 1297, pro- vided that: ‘‘(a) IN GENERAL.—If the plan sponsor of a plan to which section 104, 105, or 106 of this Act [see notes above] applies elects to have this section apply for any eligible plan year (in this section referred to as an ‘election year’), section 302 of the Employee Retire- ment Income Security Act of 1974 [29 U.S.C. 1082] and section 412 of the Internal Revenue Code of 1986 (as in effect before the amendments made by this subtitle [subtitle A (§§ 101 to 108) of title I of Pub. L. 109–280, en- acting sections 1082 and 1083 of Title 29, Labor, amend- ing sections 1021, 1023, 1053, 1054, 1056, 1103, 1108, 1132, 1301, 1303, 1310, 1362, 1371, and 1423 of Title 29 and section 106 of 1978 Reorg. Plan No. 4, set out in the Appendix to Title 5, Government Organization and Employees, and as a note under section 1001 of Title 29, and repealing sections 1057, 1082 to 1086 of Title 29] and subtitle B [subtitle B (§§ 111 to 116) of title I of Pub. L. 109–280, en- acting sections 430 and 436 of this title, amending this section and sections 409A, 411, 412, 414, 420, 4971, 4972, and 6059 of this title, and amending provisions set out as a note under section 412 of this title]) shall apply to such year in the manner described in subsection (b) or (c), whichever is specified in the election. All references in this section to ‘such Act’ or ‘such Code’ shall be to such Act or such Code as in effect before the amend- ments made by this subtitle and subtitle B. ‘‘(b) APPLICATION OF 2 AND 7 RULE.—In the case of an election year to which this subsection applies— ‘‘(1) 2-YEAR LOOKBACK FOR DETERMINING DEFICIT RE- DUCTION CONTRIBUTIONS FOR CERTAIN PLANS.—For pur- Page 1237 TITLE 26—INTERNAL REVENUE CODE § 401 poses of applying section 302(d)(9) of such Act [29 U.S.C. 1082(d)(9)] and section 412(l)(9) of such Code, the funded current liability percentage (as defined in subparagraph (C) thereof) for such plan for such plan year shall be such funded current liability percentage of such plan for the second plan year preceding the first election year of such plan. ‘‘(2) CALCULATION OF DEFICIT REDUCTION CONTRIBU- TION.—For purposes of applying section 302(d) of such Act [29 U.S.C. 1082(d)] and section 412(l) of such Code to a plan to which such sections apply (after taking into account paragraph (1))— ‘‘(A) in the case of the increased unfunded new li- ability of the plan, the applicable percentage de- scribed in section 302(d)(4)(C) of such Act [29 U.S.C. 1082(d)(4)(C)] and section 412(l)(4)(C) of such Code shall be the third segment rate described in sec- tions 104(b), 105(b), and 106(b) of this Act [see notes above], and ‘‘(B) in the case of the excess of the unfunded new liability over the increased unfunded new liability, such applicable percentage shall be determined without regard to this section. ‘‘(c) APPLICATION OF 15-YEAR AMORTIZATION.—In the case of an election year to which this subsection ap- plies, for purposes of applying section 302(d) of such Act [29 U.S.C. 1082(d)] and section 412(l) of such Code— ‘‘(1) in the case of the increased unfunded new li- ability of the plan, the applicable percentage de- scribed in section 302(d)(4)(C) of such Act [29 U.S.C. 1082(d)(4)(C)] and section 412(l)(4)(C) of such Code for any pre-effective date plan year beginning with or after the first election year shall be the ratio of— ‘‘(A) the annual installments payable in each year if the increased unfunded new liability for such plan year were amortized over 15 years, using an in- terest rate equal to the third segment rate de- scribed in sections 104(b), 105(b), and 106(b) of this Act, to ‘‘(B) the increased unfunded new liability for such plan year, and ‘‘(2) in the case of the excess of the unfunded new liability over the increased unfunded new liability, such applicable percentage shall be determined with- out regard to this section. ‘‘(d) ELECTION.— ‘‘(1) IN GENERAL.—The plan sponsor of a plan may elect to have this section apply to not more than 2 el- igible plan years with respect to the plan, except that in the case of a plan to which section 106 of this Act applies, the plan sponsor may only elect to have this section apply to 1 eligible plan year. ‘‘(2) AMORTIZATION SCHEDULE.—Such election shall specify whether the rules under subsection (b) or (c) shall apply to an election year, except that if a plan sponsor elects to have this section apply to 2 eligible plan years, the plan sponsor must elect the same rule for both years. ‘‘(3) OTHER RULES.—Such election shall be made at such time, and in such form and manner, as shall be prescribed by the Secretary of the Treasury, and may be revoked only with the consent of the Secretary of the Treasury. ‘‘(e) DEFINITIONS.—For purposes of this section— ‘‘(1) ELIGIBLE PLAN YEAR.—For purposes of this sub- paragraph, the term ‘eligible plan year’ means any plan year beginning in 2008, 2009, 2010, or 2011, except that a plan year beginning in 2008 shall only be treat- ed as an eligible plan year if the due date for the pay- ment of the minimum required contribution for such plan year occurs on or after the date of the enact- ment of this clause [June 25, 2010]. ‘‘(2) PRE-EFFECTIVE DATE PLAN YEAR.—The term ‘pre-effective date plan year’ means, with respect to a plan, any plan year prior to the first year in which the amendments made by this subtitle and subtitle B apply to the plan. ‘‘(3) INCREASED UNFUNDED NEW LIABILITY.—The term ‘increased unfunded new liability’ means, with re- spect to a year, the excess (if any) of the unfunded new liability over the amount of unfunded new liabil- ity determined as if the value of the plan’s assets de- termined under subsection 302(c)(2) of such Act [29 U.S.C. 1082(c)(2)] and section 412(c)(2) of such Code equaled the product of the current liability of the plan for the year multiplied by the funded current li- ability percentage (as defined in section 302(d)(8)(B) of such Act [29 U.S.C. 1082(d)(8)(B)] and 412(l)(8)(B) of such Code) of the plan for the second plan year pre- ceding the first election year of such plan. ‘‘(4) OTHER DEFINITIONS.—The terms ‘unfunded new liability’ and ‘current liability’ shall have the mean- ings set forth in section 302(d) of such Act [29 U.S.C. 1082(d)] and section 412(l) of such Code.’’ GRANDFATHER RULE FOR CHURCH PLANS WHICH SELF- ANNUITIZE Pub. L. 109–280, title VIII, § 865, Aug. 17, 2006, 120 Stat. 1025, provided that: ‘‘(a) IN GENERAL.—In the case of any plan year ending after the date of the enactment of this Act [Aug. 17, 2006], annuity payments provided with respect to any account maintained for a participant or beneficiary under a qualified church plan shall not fail to satisfy the requirements of section 401(a)(9) of the Internal Revenue Code of 1986 merely because the payments are not made under an annuity contract purchased from an insurance company if such payments would not fail such requirements if provided with respect to a retire- ment income account described in section 403(b)(9) of such Code. ‘‘(b) QUALIFIED CHURCH PLAN.—For purposes of this section, the term ‘qualified church plan’ means any money purchase pension plan described in section 401(a) of such Code which— ‘‘(1) is a church plan (as defined in section 414(e) of such Code) with respect to which the election pro- vided by section 410(d) of such Code has not been made, and ‘‘(2) was in existence on April 17, 2002.’’ NEW TECHNOLOGIES IN RETIREMENT PLANS Pub. L. 105–34, title XV, § 1510, Aug. 5, 1997, 111 Stat. 1068, provided that: ‘‘(a) IN GENERAL.—Not later than December 31, 1998, the Secretary of the Treasury and the Secretary of Labor shall each issue guidance which is designed to— ‘‘(1) interpret the notice, election, consent, disclo- sure, and time requirements (and related record- keeping requirements) under the Internal Revenue Code of 1986 and the Employee Retirement Income Security Act of 1974 [29 U.S.C. 1001 et seq.] relating to retirement plans as applied to the use of new tech- nologies by plan sponsors and administrators while maintaining the protection of the rights of partici- pants and beneficiaries, and ‘‘(2) clarify the extent to which writing require- ments under the Internal Revenue Code of 1986 relat- ing to retirement plans shall be interpreted to permit paperless transactions. ‘‘(b) APPLICABILITY OF FINAL REGULATIONS.—Final regulations applicable to the guidance regarding new technologies described in subsection (a) shall not be ef- fective until the first plan year beginning at least 6 months after the issuance of such final regulations.’’ TREATMENT OF QUALIFIED FOOTBALL COACHES PLAN Pub. L. 104–188, title I, § 1704(k), Aug. 20, 1996, 110 Stat. 1882, provided that: ‘‘(1) IN GENERAL.—For purposes of the Internal Rev- enue Code of 1986, a qualified football coaches plan— ‘‘(A) shall be treated as a multiemployer collec- tively bargained plan, and ‘‘(B) notwithstanding section 401(k)(4)(B) of such Code, may include a qualified cash and deferred ar- rangement under section 401(k) of such Code. ‘‘(2) QUALIFIED FOOTBALL COACHES PLAN.—For pur- poses of this subsection, the term ‘qualified football coaches plan’ means any defined contribution plan Page 1238 TITLE 26—INTERNAL REVENUE CODE § 401 which is established and maintained by an organiza- tion— ‘‘(A) which is described in section 501(c) of such Code, ‘‘(B) the membership of which consists entirely of individuals who primarily coach football as full-time employees of 4-year colleges or universities described in section 170(b)(1)(A)(ii) of such Code, and ‘‘(C) which was in existence on September 18, 1986. ‘‘(3) EFFECTIVE DATE.—This subsection shall apply to years beginning after December 22, 1987.’’ APPLICABILITY OF SUBSECTION (a)(26) Pub. L. 100–647, title VI, § 6065, Nov. 10, 1988, 102 Stat. 3702, provided that: ‘‘In the case of plan years beginning before January 1, 1993, section 401(a)(26) of the 1986 Code shall not apply to any governmental plan (within the meaning of section 414(d) of such Code) with respect to employees who were participants in such plan on July 14, 1988.’’ COORDINATION OF INTERNAL REVENUE CODE OF 1986 WITH EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 Pub. L. 100–203, title IX, § 9343(a), Dec. 22, 1987, 101 Stat. 1330–372, provided that: ‘‘Except to the extent spe- cifically provided in the Internal Revenue Code of 1986 or as determined by the Secretary of the Treasury, ti- tles I and IV of the Employee Retirement Income Secu- rity Act of 1974 [29 U.S.C. 1001 et seq., 1301 et seq.] are not applicable in interpreting such Code.’’ PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1998 Pub. L. 104–188, title I, § 1465, Aug. 20, 1996, 110 Stat. 1825, provided that: ‘‘If any amendment made by this subtitle [subtitle D (§§ 1401–1465) of title I of Pub. L. 104–188, see Tables for classification] requires an amendment to any plan or annuity contract, such amendment shall not be required to be made before the first day of the first plan year beginning on or after January 1, 1998, if— ‘‘(1) during the period after such amendment takes effect and before such first plan year, the plan or con- tract is operated in accordance with the requirements of such amendment, and ‘‘(2) such amendment applies retroactively to such period. In the case of a governmental plan (as defined in sec- tion 414(d) of the Internal Revenue Code of 1986), this section shall be applied by substituting ‘2000’ for ‘1998’.’’ PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1994 Pub. L. 102–318, title V, § 523, July 3, 1992, 106 Stat. 315, provided that: ‘‘If any amendment made by this sub- title [subtitle B (§§ 521–523) of title V of Pub. L. 102–318, amending this section and sections 55, 62, 72, 219, 402 to 404, 406 to 408, 411, 414, 415, 457, 691, 871, 877, 1441, 3121, 3306, 3402, 3405, 4973, 4980A, 6047, 6652, and 7701 of this title] requires an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after January 1, 1994, if— ‘‘(1) during the period after such amendment takes effect and before such first plan year, the plan is op- erated in accordance with the requirements of such amendment, and ‘‘(2) such plan amendment applies retroactively to such period.’’ PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1989 Pub. L. 99–514, title XI, § 1140, Oct. 22, 1986, 100 Stat. 2489, as amended by Pub. L. 101–239, title VII, § 7861(c), Dec. 19, 1989, 103 Stat. 2431; Pub. L. 104–188, title I, § 1704(t)(27), Aug. 20, 1996, 110 Stat. 1888, provided that: ‘‘(a) IN GENERAL.—If any amendment made by this subtitle, subtitle C [subtitles A (§§ 1101–1147) and C (§§ 1171–1177) of title XI of Pub. L. 99–514, enacting sec- tions 2057, 4972, 4979, 4980, 4981A, and 6659A of this title, amending this section, sections 38, 56, 72, 106, 108, 117, 120, 127, 129, 132, 133, 219, 274, 402 to 404A, 406 to 411, 414 to 417, 423, 457, 501, 505, 818, 852, 3121, 3306, 3405, 4973 to 4975, 4979A, 6051, 6693, and 7701 of this title, and sections 1052 to 1055 and 1108 of Title 29, Labor, repealing sec- tions 41 and 6699 of this title, and amending provisions set out as a note under section 1001 of Title 29], or title XVIII of this Act [see Tables for classification] requires an amendment to any plan, such plan amendment shall not be required to be made before the first plan year be- ginning on or after January 1, 1989, if— ‘‘(1) during the period after such amendment takes effect and before such first plan year, the plan is op- erated in accordance with the requirements of such amendment or in accordance with an amendment pre- scribed by the Secretary and adopted by the plan, and ‘‘(2) such plan amendment applies retroactively to the period after such amendment takes effect and such first plan year. A pension plan shall not be treated as failing to provide definitely determinable benefits or contributions, or to be operated in accordance with the provisions of the plan, merely because it operates in accordance with this provision. ‘‘(b) MODEL AMENDMENT.— ‘‘(1) SECRETARY TO PRESCRIBE AMENDMENT.—The Secretary of the Treasury or his delegate shall pre- scribe an amendment or amendments which allow a plan to meet the requirements of any amendment made by this subtitle or subtitle C— ‘‘(A) which requires an amendment to such plan, and ‘‘(B) is effective before the first plan year begin- ning after December 31, 1988. ‘‘(2) ADOPTION BY PLAN.—If a plan adopts the amendment or amendments prescribed under para- graph (1) and operates in accordance with such amendment or amendments, such plan shall not be treated as failing to provide definitely determinable benefits or contributions or to be operated in accord- ance with the provisions of the plan. ‘‘(c) SPECIAL RULE FOR COLLECTIVELY BARGAINED PLANS.—In the case of a plan maintained pursuant to 1 or more collective bargaining agreements between em- ployee representatives and 1 or more employers ratified before March 1, 1986, subsection (a) shall be applied by substituting for the first plan year beginning on or after January 1, 1989, the first plan year beginning after the later of— ‘‘(1) December 31, 1988, or ‘‘(2) the earlier of— ‘‘(A) December 31, 1990, or ‘‘(B) the date on which the last of such collective bargaining agreements terminate (without regard to any extension after February 28, 1986). For purposes of paragraph (1)(B) [(2)(B)] and any other provision of this title [see Tables for classification], an agreement shall not be treated as terminated merely because the plan is amended pursuant to such agree- ment to meet the requirements of any amendment made by this title or title XVIII of this Act.’’ SECRETARY TO ACCEPT APPLICATIONS WITH RESPECT TO SECTION 401(k) PLANS Pub. L. 99–514, title XI, § 1142, Oct. 22, 1986, 100 Stat. 2490, provided that: ‘‘The Secretary of the Treasury or his delegate shall, not later than May 1, 1987, begin ac- cepting applications for opinion letters with respect to master and prototype plans for qualified cash or de- ferred arrangements under section 401(k) of the Inter- nal Revenue Code of 1986.’’ TREATMENT OF INDIVIDUALS HAVING BEGINNING DATE AFFECTED BY PUB. L. 99–514 Pub. L. 99–514, title XVIII, § 1852(a)(4)(C), as added by Pub. L. 100–647, title I, § 1018(t)(3)(A), Nov. 10, 1988, 102 Stat. 3588, provided that: ‘‘An individual whose re- Page 1239 TITLE 26—INTERNAL REVENUE CODE § 401 quired beginning date would, but for the amendment made by subparagraph (A) [amending this section], occur after December 31, 1986, but whose required be- ginning date after such amendment occurs before Janu- ary 1, 1987, shall be treated as if such individual had be- come a 5-percent owner during the plan year ending in 1986.’’ DISTRIBUTION REQUIREMENTS FOR ACCOUNTS AND ANNU- ITIES OF AN INSURER IN A REHABILITATION PRO- CEEDING Pub. L. 98–369, div. A, title V, § 553, July 18, 1984, 98 Stat. 897, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘(a) IN GENERAL.—For purposes of sections 401(a)(9), 408(a)(6) and (7), and 408(b)(3) and (4) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]— ‘‘(1) a trust, custodial account, or annuity or other contract forming part of a pension or profit-sharing plan, or a retirement annuity, or ‘‘(2) a grantor of an individual retirement account or an individual retirement annuity, shall not be treated as failing to meet the requirements of such sections if such account, annuity, or contract was issued by an insurance company which, on March 15, 1984, was a party to a rehabilitation proceeding under the applicable State insurance law. ‘‘(b) LIMITATION.—Subsection (a) shall apply only dur- ing the period during which— ‘‘(1) the insurance company continues to be a party to the proceeding described in subsection (a), and ‘‘(2) distributions under the trust, custodial ac- count, or annuity or other contract may not be made by reason of such proceeding.’’ QUALIFICATION REQUIREMENTS MODIFIED IF REGULATIONS NOT ISSUED Pub. L. 98–369, div. A, title V, § 524(e), July 18, 1984, 98 Stat. 872, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘(1) IN GENERAL.—If the Secretary of the Treasury or his delegate does not publish final regulations under section 416 of the Internal Revenue Code of 1986 [for- merly I.R.C. 1954] (as in effect on the day before the date of the enactment of this Act [July 18, 1984]) before January 1, 1985, the Secretary shall publish before such date plan amendment provisions which may be incor- porated in a plan to meet the requirements of section 401(a)(10)(B)(ii) of such Code. ‘‘(2) EFFECT OF INCORPORATION.—If a plan is amended to incorporate the plan amendment provisions de- scribed in paragraph (1), such plan shall be treated as meeting the requirements of section 401(a)(10)(B)(ii) of the Internal Revenue Code of 1986 during the period such amendment is in effect but not later than 6 months after the final regulations described in para- graph (1) are published. ‘‘(3) FAILURE BY SECRETARY TO PUBLISH.—If the Sec- retary of the Treasury or his delegate does not publish plan amendment provisions described in paragraph (1), the plan shall be treated as meeting the requirements of section 401(a)(10)(B) of the Internal Revenue Code of 1986 if— ‘‘(A) such plan is amended to incorporate such re- quirements by reference, except that ‘‘(B) in the case of any optional requirement under section 416 of such Code, if such amendment does not specify the manner in which such requirement will be met, the employer shall be treated as having elected the requirement with respect to each employee which provides the maximum vested accrued benefit for such employee.’’ TRANSITIONAL RULE Pub. L. 95–600, title I, § 135(c)(2), Nov. 6, 1978, 92 Stat. 2787, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘In the case of cash or de- ferred arrangements in existence on June 27, 1974— ‘‘(A) the qualification of the plan and the trust under section 401 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]; ‘‘(B) the exemption of the trust under section 501(a) of such Code; ‘‘(C) the taxable year of inclusion in gross income of the employee of any amount so contributed by the employer to the trust; and ‘‘(D) the excludability of the interest of the em- ployee in the trust under sections 2039 and 2517 of such Code, shall be determined for plan years beginning before January 1, 1980 in a manner consistent with Revenue Ruling 56–497 (1956–2 C.B. 284), Revenue Ruling 63–180 (1963–2 C.B. 189), and Revenue Ruling 68–89 (1968–1 C.B. 402).’’ SALARY REDUCTION REGULATIONS Pub. L. 93–406, title II, § 2006, Sept. 2, 1974, 88 Stat. 992, as amended by Pub. L. 94–455, title XV, § 1506, Oct. 4, 1976, 90 Stat. 1739; Pub. L. 95–615, § 5, Nov. 8, 1978, 92 Stat. 3097; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that: ‘‘(a) INCLUSION OF CERTAIN CONTRIBUTIONS IN IN- COME.—Except in the case of plans or arrangements in existence on June 27, 1974, a contribution made before January 1, 1980, to an employees’ trust described in sec- tion 401(a), 403(a) or 405(a) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] which is exempt from tax under section 501(a) of such Code, or under an arrange- ment which, but for the fact that it was not in exist- ence on June 27, 1974, would be an arrangement de- scribed in subsection (b)(2) of this section, shall be treated as a contribution made by an employee if the contribution is made under an arrangement under which the contribution will be made only if the em- ployee elects to receive a reduction in his compensa- tion or to forego an increase in his compensation. ‘‘(b) ADMINISTRATION IN THE CASE OF CERTAIN QUALI- FIED PENSION OR PROFIT-SHARING PLANS, ETC., IN EXIST- ENCE ON JUNE 27, 1974.—No salary reduction regulations may be issued by the Secretary of the Treasury in final form before January 1, 1980, with respect to an arrange- ment which was in existence on June 27, 1974, and which, on that date— ‘‘(1) provided for contributions to an employee’s trust described in section 401(a), 403(a), or 405(a) of the Internal Revenue Code of 1986 [subsec. (a) of this section, section 403(a) of this title, or section 405(a) of this title] which is exempt from tax under section 501(a) of such Code [section 501(a) of this title], or ‘‘(2) was maintained as part of an arrangement under which an employee was permitted to elect to receive part of his compensation in one or more alter- native forms if one of such forms results in the inclu- sion of amounts in income under the Internal Rev- enue Code of 1986 [this title]. ‘‘(c) ADMINISTRATION OF LAW WITH RESPECT TO CER- TAIN PLANS.— ‘‘(1) ADMINISTRATION IN THE CASE OF PLANS DE- SCRIBED IN SUBSECTION (b).—Until salary reduction regulations have been issued in final form, the law with respect to plans or arrangements described in subsection (b) shall be administered— ‘‘(A) without regard to the proposed salary reduc- tion regulations (37 FR 25938) and without regard to any other proposed salary reduction regulations, and ‘‘(B) in the manner in which such law was admin- istered before January 1, 1972. ‘‘(2) ADMINISTRATION IN THE CASE OF QUALIFIED PROF- IT-SHARING PLANS.—In the case of plans or arrange- ments described in subsection (b), in applying this section to the tax treatment of contributions to qualified profit-sharing plans where the contributed amounts are distributable only after a period of de- ferral, the law shall be administered in a manner con- sistent with— ‘‘(A) Revenue Ruling 56–497 (1956—2 C.B. 284), ‘‘(B) Revenue Ruling 63–180 (1963—2 C.B. 189), and ‘‘(C) Revenue Ruling 68–89 (1968—1 C.B. 402). ‘‘(d) LIMITATION ON RETROACTIVITY OF FINAL REGULA- TIONS.—In the case of any salary reduction regulations which become final after December 31, 1979— Page 1240 TITLE 26—INTERNAL REVENUE CODE § 402 ‘‘(1) for purposes of chapter 1 of the Internal Rev- enue Code of 1986 (relating to normal taxes and surtaxes), such regulations shall not apply before January 1, 1980; and ‘‘(2) for purposes of chapter 21 of such Code (relat- ing to Federal Insurance Contributions Act) and for purposes of chapter 24 of such Code (relating to col- lection of income tax at source on wages), such regu- lations shall not apply before the day on which such regulations are issued in final form. ‘‘(e) SALARY REDUCTION REGULATIONS DEFINED.—For purpose of this section, the term ‘salary reduction reg- ulations’ means regulations dealing with the includibility in gross income (at the time of contribu- tion) of amounts contributed to a plan which includes a trust that qualifies under section 401(a) [subsec. (a) of this section], or a plan described in section 403(a) or 405(a), including plans or arrangements described in subsection (b)(2), if the contribution is made under an arrangement under which the contribution will be made only if the employee elects to receive a reduction in his compensation or to forego an increase in his compensation, or under an arrangement under which the employee is permitted to elect to receive part of his compensation in one or more alternative forms (if one of such forms results in the inclusion of amounts in in- come under the Internal Revenue Code of 1986).’’ [Pub. L. 95–615, § 210(b), Nov. 8, 1978, 92 Stat. 3109, pro- vided that: ‘‘Section 5 of this Act [amending section 2006 of Pub. L. 93–406, set out above] shall not apply with respect to any type of plan for any period for which rules for that type of plan are provided by the Revenue Act of 1978 [Pub. L. 95–600, see Short Title of 1978 Amendment note set out under section 1 of this title].’’] INFLATION ADJUSTED ITEMS FOR CERTAIN YEARS Provisions relating to inflation adjustment of items in sections 25B, 45A, 45E, 72, 219, 401, 402, 402A, 404, 408, 408A, 409, 414 to 416, 430, 432, 457, and 664 of this title for certain years were contained in the following: 2025—Internal Revenue Notice 2024–80. 2024—Internal Revenue Notice 2023–75. 2023—Internal Revenue Notice 2022–55. 2022—Internal Revenue Notice 2021–61. 2021—Internal Revenue Notice 2020–79. 2020—Internal Revenue Notice 2019–59. 2019—Internal Revenue Notice 2018–83. 2018—Internal Revenue Notice 2017–64. 2017—Internal Revenue Notice 2016–62. 2016—Internal Revenue Notice 2015–75. 2015—Internal Revenue Notice 2014–70. 2014—Internal Revenue Notice 2013–73. 2013—Internal Revenue Notice 2012–67. 2012—Internal Revenue Notice 2011–90. 2011—Internal Revenue Notice 2010–78. 2010—Internal Revenue Notice 2009–94. 2009—Internal Revenue Notice 2008–102. 2008—Internal Revenue Notice 2007–87. 2007—Internal Revenue Notice 2006–98. 2006—Internal Revenue Notice 2005–75. 2005—Internal Revenue Notice 2004–72. 2004—Internal Revenue Notice 2003–73. 2003—Internal Revenue Notice 2002–71. 2002—Internal Revenue Notice 2001–84. 2001—Internal Revenue Notice 2000–66. 2000—Internal Revenue Notice 99–55. 1999—Internal Revenue Notice 98–53. 1998—Internal Revenue Notice 97–58. 1997—Internal Revenue Notice 96–55. § 402. Taxability of beneficiary of employees’ trust (a) Taxability of beneficiary of exempt trust Except as otherwise provided in this section, any amount actually distributed to any dis- tributee by any employees’ trust described in section 401(a) which is exempt from tax under section 501(a) shall be taxable to the distributee, in the taxable year of the distributee in which distributed, under section 72 (relating to annu- ities). (b) Taxability of beneficiary of nonexempt trust (1) Contributions Contributions to an employees’ trust made by an employer during a taxable year of the employer which ends with or within a taxable year of the trust for which the trust is not ex- empt from tax under section 501(a) shall be in- cluded in the gross income of the employee in accordance with section 83 (relating to prop- erty transferred in connection with perform- ance of services), except that the value of the employee’s interest in the trust shall be sub- stituted for the fair market value of the prop- erty for purposes of applying such section. (2) Distributions The amount actually distributed or made available to any distributee by any trust de- scribed in paragraph (1) shall be taxable to the distributee, in the taxable year in which so distributed or made available, under section 72 (relating to annuities), except that distribu- tions of income of such trust before the annu- ity starting date (as defined in section 72(c)(4)) shall be included in the gross income of the employee without regard to section 72(e)(5) (relating to amounts not received as annu- ities). (3) Grantor trusts A beneficiary of any trust described in para- graph (1) shall not be considered the owner of any portion of such trust under subpart E of part I of subchapter J (relating to grantors and others treated as substantial owners). (4) Failure to meet requirements of section 410(b) (A) Highly compensated employees If 1 of the reasons a trust is not exempt from tax under section 501(a) is the failure of the plan of which it is a part to meet the re- quirements of section 401(a)(26) or 410(b), then a highly compensated employee shall, in lieu of the amount determined under paragraph (1) or (2) include in gross income for the taxable year with or within which the taxable year of the trust ends an amount equal to the vested accrued benefit of such employee (other than the employee’s invest- ment in the contract) as of the close of such taxable year of the trust. (B) Failure to meet coverage tests If a trust is not exempt from tax under section 501(a) for any taxable year solely be- cause such trust is part of a plan which fails to meet the requirements of section 401(a)(26) or 410(b), paragraphs (1) and (2) shall not apply by reason of such failure to any employee who was not a highly com- pensated employee during— (i) such taxable year, or (ii) any preceding period for which serv- ice was creditable to such employee under the plan.