The IRS has extended the deadline originally provided in Notice 2011-96 to amend a defined benefit plan to satisfy the requirements of IRC Section 436 and has provided relief from the requirements of IRC Section 411(d)(6).

In general, Notice 2012-70 extends the deadline to adopt an interim amendment for IRC Section 436 to the latest of:

1. the last day of the first plan year that begins on or after January 1, 2013;
2. the last day of the plan year for which IRC Section 436 is first effective for the plan; or
3. the due date (including extensions) of the employer's tax return for the tax year (determined in accordance with section 5.06(2) of Rev Proc 2007-44, in the case of a tax-exempt employer) that contains the first day of the plan year for which IRC section 436 is first effective for the plan.

Notice 2012-70 also provides that a plan amendment adopted with respect to IRC Section 436 that eliminates or reduces an IRC section 411(d)(6) protected benefit does not cause the plan to fail to meet IRC Section 411(d)(6) anti-cutback requirements if the amendment is adopted by the deadline described above and the elimination or reduction is made only to the extent necessary to enable the plan to meet IRC Section 436 requirements.

Previously, Notice 2011-96 provided a sample plan amendment that a sponsor of a single employer defined benefit plan may adopt to amend the terms of the plan to satisfy IRC Section 436 requirements regarding benefit restrictions that apply to underfunded plans. The Notice defined the deadline to adopt the plan as the latest of:

1. the last day of the first plan year that begins on or after January 1, 2012;
2. the last day of the plan year for which IRC Section 436 is first effective for the plan; or
3. the due date (including extensions) of the employer's tax return for the tax year (determined in accordance with section 5.06(2) of Rev Proc 2007-44, in the case of a tax-exempt employer) that contains the first day of the plan year for which IRC section 436 is first effective for the plan.

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