IRS 2011 Cumulative List
The Internal Revenue Service (the “Service”) has released Notice 2011– 97, which contains the 2011 Cumulative List of Changes in Plan Qualification Requirements (the “2011 Cumulative List”) described in Section 4 of Revenue Procedure 2007– 44. The 2011 Cumulative List is to be used by plan sponsors and practitioners submitting determination letter applications for plans during the period beginning February 1, 2012 and ending January 31, 2013.

The 2011 Cumulative List applies primarily to the plan sponsors of individually designed defined contribution plans (including ESOPs), single employer individually designed defined benefit plans, and multiple employer individually designed plans that fall in Cycle B. Generally, an individually designed plan is in Cycle B if the last digit of the plan sponsor’s employer identification number (“EIN”) ends in either a 2 or a 7.

The 2011 Cumulative List informs plan sponsors of issues the Service has specifically identified for review in determining whether a plan filing in Cycle B has been properly updated. Specifically, the 2011 Cumulative List reflects law changes under the Pension Protection Act of 2006 (PPA ’06), the U.S. Troop Readiness, Veteran’s Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007 (Public law 110 –28), the Heroes Earnings Assistance and Relief Tax Act of 2008 (HEART Act), the Worker, Retiree, and Employer Recovery Act of 2008 (WRERA), the Small Business Jobs Act of 2010 (SBJA), and the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010 (PRA 2010).

In this review cycle, the Service said that it will not consider any of the following:

• guidance published after Oct. 1, 2011;
• statutes enacted after Oct. 1, 2011;
• qualification requirements first effective in 2013 or later;
• statutory provisions that are first effective in 2012, for which there is no guidance identified in the 2011 Cumulative List; and
• the final hybrid plan regulations (other than with respect to § 411(a)(13)(A)) unless the plan has been amended to satisfy those regulations. For this purpose, the Service will only consider those provisions of the regulations that are effective for plan years beginning on or after January 1, 2011.

Terminating plans must include all law changes in effect at the time of termination.

All items from the 2005 and 2006 Cumulative Lists have been deleted from the 2011 Cumulative List. Thus, the 2011 Cumulative List includes those plan qualification requirements included in the 2007, 2008, 2009, and 2010 Cumulative Lists. These deletions have been made to enhance the utility of the cumulative list, by removing items that would have been previously reviewed in the case of a plan that was submitted during the initial Cycle B submission period (February 1, 2007 – January 31, 2008). However, if a plan has not been previously reviewed for items on earlier cumulative lists, the items from the earlier cumulative lists must be taken into account. For example, a new plan that was established after the Cycle B submission period would be reviewed for items on the 2004 Cumulative List.

The 2011 Cumulative List includes the following “new” plan qualification requirements listed by section of the Internal Revenue Code (the “Code”). All references are to the Code and Treasury Regulations unless otherwise specified.

401(a)

• Guidance published in Revenue Ruling 2011–1 revises the generally applicable rules for group trusts and, if certain requirements are met, permits the participation in group trusts of custodial accounts under § 403(b)(7), retirement income accounts under § 403(b)(9), and governmental retiree benefit plans under §401(a)(24). This revenue ruling also modifies the transition relief provided in Revenue Ruling 2008 – 40.

401(a)(22); 401(a)(28)(C); and 409

• Under Notice 2011–19, the terms readily tradable on an established securities market and readily tradable on an established market mean employer securities that are tradable on an established securities market within the meaning of § 1.401(a)(35) –1(f)(5) for pur–poses of §§ 401(a)(22), 401(a)(28)(C), 409(h)(1)(B), and 409(l). Notice 2011–19 is effective for plan years that begin after January 1, 2012, except for certain plans that have a delayed effective date.

411(a)(13)

• Notice 2011– 85 extends the deadline for adopting an interim or discretionary amendment under § 411(a)(13) (other than § 411(a)(13)(A)).

411(b)(5)

• Notice 2011– 85 announced that the Treasury Department and the Service intend to amend the 2010 final hybrid plan regulations to postpone the effective date of §§ 1.411(b)(5) –1(d)(1)(iii), (d)(1)(vi), and (d)(6)(l) to plan years that begin on or after a date to be specified in those regulations that is not earlier than January 1, 2013. This notice also extends the deadline for adopting an interim or discretionary amendment under § 411(b)(5).

431(b)(8)

• PRA 2010 § 211(a)(2) added § 431(b)(8) to the Code, which provides two special funding rules available to multiemployer plans.
• Notice 2010 – 83 provides guidance with respect to the special funding rules under § 431(b)(8).

We would be glad to answer questions about any of these provisions or about updating your plan(s) accordingly.