Required Minimum Distributions

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Parts 1 and 54

[REG-105954-20]

RIN 1545-BP82

Required Minimum Distributions

AGENCY:

Internal Revenue Service (IRS), Treasury.

ACTION:

Notice of proposed rulemaking and notice of public hearing.

SUMMARY:

This document contains proposed regulations relating to required minimum distributions from qualified plans; section 403(b) annuity contracts, custodial accounts, and retirement income accounts; individual retirement accounts and annuities; and eligible deferred compensation plans under section 457. These regulations will affect administrators of, and participants in, those plans; owners of individual retirement accounts and annuities; employees for whom amounts are contributed to section 403(b) annuity contracts, custodial accounts, or retirement income accounts; and beneficiaries of those plans, contracts, accounts, and annuities.

DATES:

Written or electronic comments must be received by May 25, 2022. Outlines of topics to be discussed at the public hearing scheduled for June 15, 2022, at 10:00 a.m. must be received by May 25, 2022.

As of February 24, 2022, § 1.408-8 of the notice of proposed rulemaking that was published in the

Federal Register

on July 14, 1981 (46 FR 36198) is withdrawn.

ADDRESSES:

Commenters are strongly encouraged to submit public comments electronically. Submit electronic submissions via the Federal eRulemaking Portal at

www.regulations.gov

(indicate IRS and REG-105954-20) by following the online instructions for submitting comments. Once submitted to the Federal eRulemaking Portal, comments cannot be edited or withdrawn. The IRS expects to have limited personnel available to process public comments that are submitted on paper through mail. Until further notice, any comments submitted on paper will be considered to the extent practicable. The Department of the Treasury (Treasury Department) and the IRS will publish for public availability any comment submitted electronically, and to the extent practicable on paper, to its public docket. Send paper submissions to: CC:PA:LPD:PR (REG-105954-20), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044.

FOR FURTHER INFORMATION CONTACT:

Concerning the proposed regulations, Brandon M. Ford or Laura B. Warshawsky, (202) 317-6700; concerning submissions of comments and outlines of topics for the public hearing, Regina Johnson, (202) 317-5177 (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

Background

This document contains proposed amendments to the Income Tax Regulations (26 CFR part 1) under section 401(a)(9) of the Internal Revenue Code of 1986 (Code). These proposed regulations address the required minimum distribution requirements for plans qualified under section 401(a) and are being proposed to update the regulations to reflect the amendments made to section 401(a)(9) by sections 114 and 401 of the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act), enacted on December 20, 2019, as Division O of the Further Consolidated Appropriations Act of 2019, Public Law 116-94, 133 Stat. 2534 (2019).

The rules of section 401(a)(9) are adopted by reference in section 408(a)(6) and (b)(3) for individual retirement accounts and individual retirement annuities (collectively, IRAs), section 408A(c)(5) for Roth IRAs, section 403(b)(10) for annuity contracts, custodial accounts, and retirement income accounts described in section 403(b) (section 403(b) plans), and section 457(d) for eligible deferred compensation plans. The determination of the required minimum distribution is also relevant for purposes of the related excise tax under section 4974 and the definition of eligible rollover distribution in section 402(c). Accordingly, this document also contains proposed conforming amendments to the Income Tax Regulations (26 CFR part 1) under sections 402(c), 403(b), 408, and 457, and to the Pension Excise Tax Regulations (26 CFR part 54) under section 4974.

Section 401(a)(9)—Required Minimum Distributions

Section 401(a)(9) provides rules for distributions from a qualified plan during the life of the employee in section 401(a)(9)(A) and after the death of the employee in section 401(a)(9)(B). The rules set forth a required beginning date for distributions and identify the period over which the employee's entire interest must be distributed.

Specifically, section 401(a)(9)(A)(ii) provides that the entire interest of an employee in a qualified plan must be distributed, beginning not later than the employee's required beginning date, in accordance with regulations, over the life of the employee or over the lives of the employee and a designated beneficiary (or over a period not extending beyond the life expectancy of the employee and a designated beneficiary). Section 401(a)(9)(B)(i) provides that, if the employee dies after distributions have begun, the employee's remaining interest must be distributed at least as rapidly as under the distribution method used by the employee as of the date of the employee's death.

Section 401(a)(9)(B)(ii) and (iii) provides that, if the employee dies before required minimum distributions have begun, the employee's interest must either be: (1) Distributed (in accordance with regulations) over the life or life expectancy of the designated beneficiary with the distributions generally beginning no later than 1 year after the date of the employee's death; or (2) distributed within 5 years after the death of the employee. However, under section 401(a)(9)(B)(iv), a surviving spouse may wait until the date the employee would have attained age 72 to begin taking required minimum distributions.

Section 401(a)(9)(C) (as amended by section 114 of the SECURE Act) defines the required beginning date for an employee (other than a 5-percent owner or IRA owner) as April 1 of the calendar year following the later of the calendar year in which the employee attains age 72 or the calendar year in which the employee retires. For a 5-percent owner or an IRA owner, the required beginning date is April 1 of the calendar year following the calendar year in which the individual attains age 72, even if the individual has not retired. Section 401(a)(9)(C)(iii) provides that certain employees who commence benefits under a defined benefit plan after the year in which they attain age 70

1/2

must receive an actuarial increase.

Section 401(a)(9)(D) provides that (except in the case of a life annuity) the life expectancy of an employee and the employee's spouse that is used to determine the period over which payments must be made may be redetermined, but not more frequently than annually.

Section 401(a)(9)(E)(i) defines the term

designated beneficiary

as any individual designated as a beneficiary by the employee. Section 401(a)(9)(E)(ii) (which was added as part of section 401 of the SECURE Act) defines the term

eligible designated beneficiary

with respect to any employee, as any designated beneficiary who, as of the date of the employee's death, is: (1) The surviving spouse of the employee; (2) a child of the employee who has not reached the age of majority (within the meaning of section 401(a)(9)(F)); (3) disabled (within the meaning of section 72(m)(7)); (4) a chronically ill individual (within the meaning of section 7702B(c)(2), subject to certain exceptions); or (5) an individual not described elsewhere in section 401(a)(9)(E)(ii) who is not more than 10 years younger than the employee.

Section 401(a)(9)(E)(iii) provides that, subject to the rule in section 401(a)(9)(F), the treatment of an employee's child as an eligible designated beneficiary ends when the child attains the age of majority and that any remaining interest must be distributed within 10 years of that date. Section 401(a)(9)(F) provides that, under regulations, any amount paid to a child is treated as if it had been paid to the surviving spouse if it will be paid to the surviving spouse upon that child reaching the age of majority (or other designated event permitted under regulations).

Section 401(a)(9)(G) provides that any distribution required to satisfy the incidental death benefit requirement of section 401(a) is treated as a required minimum distribution.

Section 401(a)(9)(H) (which was added as part of section 401 of the SECURE Act) provides special rules that generally apply to the distribution of an employee's remaining interest in a defined contribution plan after the death of that employee. Specifically, section 401(a)(9)(H)(i) provides that, except in the case of a beneficiary who is not a designated beneficiary, section 401(a)(9)(B)(ii): (1) Is applied by substituting 10 years for 5 years; and (2) applies whether or not distributions of the employee's interest have begun in accordance with section 401(a)(9)(A). Section 401(a)(9)(H)(ii) provides that section 401(a)(9)(B)(iii) (permitting payments over the life or life expectancy of the designated beneficiary as an alternative to the 10-year rule) applies only in the case of an eligible designated beneficiary. Section 401(a)(9)(H)(iii) provides that if an eligible designated beneficiary dies before the employee's interest is entirely distributed, then section 401(a)(9)(H)(ii) does not apply to the beneficiary of the eligible designated beneficiary, and the remainder of the employee's interest must be distributed within 10 years after the death of the eligible designated beneficiary.

Section 401(a)(9)(H)(iv) provides that in the case of an applicable multi-beneficiary trust, if, under the terms of the trust, it is to be divided immediately upon the death of the employee into separate trusts for each beneficiary, then section 401(a)(9)(H)(ii) is applied separately with respect to the portion of the employee's interest that is payable to any disabled or chronically ill eligible designated beneficiary. Section 401(a)(9)(H)(iv) also provides that in the case of an applicable multi-beneficiary trust, if, under the terms of the trust, no individual (other than an eligible designated beneficiary who is disabled or chronically ill) has any right to the employee's interest in the plan until the death of all of those disabled or chronically ill eligible designated beneficiaries with respect to the trust, then: (1) Section 401(a)(9)(B)(iii) (permitting payments over the life expectancy of a beneficiary) will apply to the distribution of the employee's interest; and (2) any beneficiary who is not disabled or chronically ill will be treated as a beneficiary of the eligible designated beneficiary who is disabled or chronically ill upon the death of that eligible designated beneficiary.

Section 401(a)(9)(H)(v) defines the term

applicable multi-beneficiary trust

as a trust: (1) Which has more than one beneficiary; (2) all of the beneficiaries of which are treated as designated beneficiaries for purposes of determining the distribution period pursuant to section 401(a)(9); and (3) at least one of the beneficiaries of which is an eligible designated beneficiary who is either disabled or chronically ill.

Section 401(a)(9)(H)(vi) provides that, for purposes of applying section 401(a)(9)(H), an eligible retirement plan defined in section 402(c)(8)(B) (other than a defined benefit plan described in section 402(c)(8)(B)(iv) or (v) or a qualified trust that is a part of a defined benefit plan) is treated as a defined contribution plan.

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The eligible retirement plans described in section 402(c)(8)(B)(iv) and (v) are an annuity plan described in section 403(a) and an eligible deferred compensation plan described in section 457(b) that is maintained by an eligible employer described in section 457(e)(1)(A), respectively.

Prior to amendment by section 114 of the SECURE Act, section 401(a)(9)(C) of the Code defined the required beginning date by reference to the calendar year in which the employee attains age 70

1/2

. Section 114(d) of the SECURE Act provides that the amendments made by section 114 of the SECURE Act apply to distributions required to be made after December 31, 2019, with respect to individuals who attain age 70

1/2

after that date.

Section 401(b)(1) of the SECURE Act provides that, generally, the amendments made to section 401(a)(9)(E) and (H) of the Code apply to distributions with respect to employees who die after December 31, 2019.

Section 401(b)(2) of the SECURE Act provides that in the case of a plan maintained pursuant to one or more collective bargaining agreements between employee representatives and one or more employers that were ratified before December 20, 2019, the amendments to sections 401(a)(9)(E) and (H) of the Code apply to distributions with respect to employees who die in calendar years beginning after December 31, 2021, or if earlier, the later of: (1) The date on which the last of the collective bargaining agreements terminated (without regard to any extension of the agreement to which the parties agree on or after December 20, 2019), or (2) December 31, 2019.

Section 401(b)(3) of the SECURE Act provides that in the case of a governmental plan (as defined in section 414(d) of the Code), the amendments to sections 401(a)(9)(E) and (H) will apply to distributions with respect to employees who die after December 31, 2021.

Section 401(b)(4) of the SECURE Act provides that the amendments made to sections 401(a)(9)(E) and (H) of the Code do not apply to a qualified annuity that is a binding annuity contract in effect on December 20, 2019, and at all times thereafter.

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Section 401(b)(4)(B) of the SECURE Act provides that the term

qualified annuity

means, with respect 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 expectancy of such employee or the joint life expectancy of such employee and a designated beneficiary) in accordance with the regulations described in section 401(a)(9)(A)(ii) of such Code (as in effect before such amendments) and which meets the other requirements 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 the SECURE Act, and the employee has made an irrevocable election 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 employee has made an irrevocable election before the date of enactment of the SECURE Act as to the method and amount of the annuity payments to the employee or any designated beneficiaries.

Section 401(b)(5) of the SECURE Act provides that if an employee dies before the effective date of section 401(a)(9)(H)

of the Code for a plan, then, in applying the amendments made to sections 401(a)(9)(E) and (H) to the employee's designated beneficiary who dies on or after the effective date, (1) the amendments apply to any beneficiary of the designated beneficiary, and (2) the designated beneficiary is treated as an eligible designated beneficiary for purposes of section 401(a)(9)(H)(ii).

Section 402(c)—Rollovers

Section 402(c) provides rules related to the rollover of a distribution from a qualified plan to another eligible retirement plan. Prior to being amended by section 641 of the Economic Growth and Tax Relief Reconciliation Act of 2001, Public Law 107-16, 115 Stat. 38 (2001) (EGTRRA), section 402(c)(2) of the Code limited the portion of a distribution that could be rolled over to the amount that would have been includible in income in the absence of the rollover. Section 641 of EGTRRA and section 411(q) of the Job Creation and Worker Assistance Act of 2002, Public Law 107-147, 116 Stat. 21 (2002), expanded the rollover rules to permit a rollover to an IRA of the portion of the distribution that would have been excluded from gross income in the absence of the rollover (that is, the portion of the amount distributed that consists of the employee's investment in the contract). In addition, that portion may be transferred in a direct trustee-to-trustee transfer to a qualified trust or to an annuity contract described in section 403(b) of the Code, but only if the trust or annuity contract separately accounts for the amount that consists of the employee's investment in the contract. If only a portion of an eligible rollover distribution is rolled over or transferred, then the amount rolled over or transferred is treated as consisting first of the portion of the distribution that is not allocable to the employee's investment in the contract.

Under section 402(c), any amount distributed from a qualified plan generally will be excluded from income if it is transferred to an eligible retirement plan no later than the 60th day following the day the distribution is received. Section 402(c)(3)(B) was added by section 644 of EGTRRA to provide that the Secretary may waive the 60-day rollover requirement in certain circumstances. Section 402(c)(3)(C) was added to the Code by section 13613 of the Tax Cuts and Jobs Act, Public Law 115-97, 131 Stat. 2054 (2017) (TCJA) to provide an extended rollover deadline for qualified plan loan offset (QPLO) amounts.

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Specifically, the deadline for rollover of any portion of a QPLO amount is extended so that it ends no earlier than the distributee's tax filing due date (including extensions) for the taxable year in which the offset occurs.

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A QPLO amount is defined in section 402(c)(3)(C)(ii) as a plan loan offset amount that is distributed from a qualified employer plan to a participant or beneficiary solely by reason of: (1) The termination of the qualified employer plan, or (2) the failure to meet the repayment terms of the loan from the plan because of the severance from employment of the participant.

Subject to certain exclusions, section 402(c)(4) provides that an eligible rollover distribution means any distribution to an employee of all or any portion of the balance to the credit of the employee in a qualified plan. Section 402(c)(4)(A) excludes from the definition of an eligible rollover distribution any distribution that is one of a series of substantially equal periodic payments payable for the life (or life expectancy) of the employee (or the employee and the employee's designated beneficiary), or for a specified period of 10 years or more. Section 402(c)(4)(B) provides that any distribution that is required under section 401(a)(9) is excluded from the definition of an eligible rollover distribution. Section 402(c)(4)(C), which was added by section 636(b)(1) of EGTRRA, excludes hardship distributions from the definition of an eligible rollover distribution.

Prior to being amended by section 641 of EGTRRA, section 402(c)(8)(B) of the Code provided that the only type of eligible retirement plan permitted to receive a rollover from a qualified plan was another qualified plan or an IRA. Section 641 of EGTRRA amended section 402(c)(8)(B) to expand the list of retirement plans eligible to receive rollovers to include an annuity contract described in section 403(b) of the Code, and an eligible deferred compensation plan described in section 457(b) which is maintained by an eligible employer described in section 457(e)(1)(A). Section 617(c) of EGTRRA amended section 402(c)(8)(B) of the Code to provide that if any portion of an eligible rollover distribution is attributable to distributions from a designated Roth account (as defined in section 402A), that portion may be rolled over only to another designated Roth account or a Roth IRA (as described in section 408A). Section 641 of EGTRRA also added section 402(c)(10) to the Code to provide that an eligible deferred compensation plan described in section 457(b) maintained by an eligible employer described in section 457(e)(1)(A) may accept rollovers from a different type of eligible retirement plan only if it separately accounts for the amounts rolled into the plan.

Section 402(c)(9) provides that, if any distribution attributable to an employee is paid to the spouse of the employee after the employee's death, then section 402(c) applies to that distribution in the same manner as if the spouse were the employee. At the time section 402(c)(9) was enacted, a surviving spouse was permitted to roll over an eligible rollover distribution only to an IRA. However, section 641 of EGTRRA amended section 402(c)(9) of the Code to expand the type of eligible retirement plan permitted to receive a spousal rollover to include not just an IRA, but also any other eligible retirement plan.

Section 402(c)(11) of the Code was added by section 829 of the Pension Protection Act of 2006, Public Law 109-280, 120 Stat. 780 (2006) (PPA), to provide that an individual who is not the surviving spouse of the employee and who is a designated beneficiary (as defined by section 401(a)(9)(E) of the Code) may elect to have any portion of a distribution made in the form of a direct trustee-to-trustee transfer to an individual retirement plan established for the purpose of receiving that distribution. If a direct trustee-to-trustee transfer is made pursuant to section 402(c)(11), then the required minimum distribution rules applicable to distributions after the employee's death in section 401(a)(9)(B) (other than section 401(a)(9)(B)(iv)) will apply to the individual retirement plan.

The rollover rules of section 402(c) also apply to a distribution from a section 403(a) qualified annuity plan, a section 403(b) plan, and an eligible deferred compensation plan described in section 457(b) maintained by an eligible employer described in section 457(e)(1)(A). See sections 403(a)(4)(B), 403(b)(8)(B), and 457(e)(16)(B), respectively.

Sections 403(a), 403(b), 408, and 457—Other Arrangements Subject to Section 401(a)(9)

Under section 403(a)(1), a qualified annuity plan under section 403(a) must meet the requirements of section 404(a)(2) (which provides that an annuity plan must satisfy the required minimum distribution rules under section 401(a)(9)). Sections 403(b)(10), 408(a)(6), and 408(b)(3) provide that a section 403(b) plan, an individual retirement account, and an individual retirement annuity, respectively, must satisfy rules similar to the requirements of section 401(a)(9) and the incidental death benefit requirements of section

401(a). Under section 457(b)(5) and (d)(2), a plan is an eligible deferred compensation plan described in section 457(b) only if it satisfies the minimum distribution requirements of section 401(a)(9).

Section 4974—Excise Tax on Failure To Satisfy Section 401(a)(9)

Section 4974(a) provides that if the amount distributed during the taxable year of a payee under any qualified retirement plan (as defined in section 4974(c)) or any eligible deferred compensation plan (as defined in section 457(b)) is less than that taxable year's minimum required distribution (as defined in section 4974(b)), then an excise tax is imposed on the payee equal to 50 percent of the amount by which the minimum required distribution for the taxable year exceeds the amount actually distributed in that taxable year.

Section 4974(d) provides that if the taxpayer establishes to the satisfaction of the Secretary that the failure to distribute the entire amount required in a taxable year was due to reasonable error and reasonable steps are being taken to remedy that shortfall, then the Secretary may waive the excise tax imposed in section 4974(a) for that taxable year.

Good Faith Compliance Standard for Governmental Plans

Section 823 of PPA provides that a governmental plan (as defined in section 414(d) of the Code) is treated as having complied with section 401(a)(9) if the plan complies with a reasonable, good faith interpretation of section 401(a)(9).

Existing Regulations

Final regulations relating to required minimum distributions from a qualified plan, an IRA, and a section 403(b) plan, have been subject to a series of amendments and additions since they were published in the

Federal Register

on April 17, 2002 (67 FR 18988).

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Final regulations relating to required minimum distributions from defined benefit plans and annuity contracts were published in the

Federal Register

on June 15, 2004 (69 FR 68077). Final regulations published in the

Federal Register

on September 8, 2009 (74 FR 45993) updated the rules to permit a governmental plan to comply with the required minimum distribution rules using a reasonable, good faith interpretation of section 401(a)(9). Final regulations relating to qualified longevity annuity contracts were published in the

Federal Register

on July 2, 2014 (79 FR 37633). Final regulations published in the

Federal Register

on November 12, 2020 (85 FR 72477) updated the life expectancy and distribution period tables for distribution calendar years that begin on or after January 1, 2022.

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Final regulations under section 4974 (relating to excise taxes for excess accumulations in qualified plans) were published at the same time but have not been amended.

Final regulations relating to section 402(c) and eligible rollover distributions were published in the

Federal Register

on September 22, 1995 (60 FR 49199). Since those regulations were issued, section 402(c) has been amended several times, and guidance related to those amendments has generally been issued in the Internal Revenue Bulletin rather than through the issuance of new regulations. For example, Notice 2007-7, 2007-1 C.B. 395, provided guidance related to the amendments to section 402(c) made by PPA. However, final regulations related to the extended period of time to roll over a QPLO amount under section 402(c)(3)(C) were published in the

Federal Register

on January 6, 2021 (86 FR 464). See § 1.402(c)-3.

Explanation of Provisions

These proposed regulations would update several existing regulations under sections 401(a)(9), 402(c), 403(b), 457, and 4974 to reflect statutory amendments that have been made since those regulations were last issued. These proposed regulations also clarify certain issues that have been raised in public comments and private letter ruling requests. These proposed regulations also replace the question-and-answer format of the existing regulations under sections 401(a)(9), 402(c), 408, and 4974 with a standard format. Rules under the existing regulations that are retained in these proposed regulations are generally not discussed in this Explanation of Provisions.

I. Section 401(a)(9) Regulations

A. Section 1.401(a)(9)-1—Minimum Distribution Requirement in General

1. Statutory Effective Date of the Limitation on Beneficiary Life Expectancy Distributions

Proposed § 1.401(a)(9)-1 provides general rules that apply for all of the regulations under section 401(a)(9), including rules addressing application of the effective date of new section 401(a)(9)(H), which was added by section 401 of the SECURE Act to limit life expectancy distributions for beneficiaries. Generally, the amendments made by section 401 of the SECURE Act apply to distributions with respect to an employee who dies on or after January 1, 2020 (with a later effective date for certain collectively bargained plans or governmental plans). In addition, if an employee in a plan died before the section 401(a)(9)(H) effective date for that plan, the employee had only one designated beneficiary, and the employee's designated beneficiary dies on or after that effective date, then the amendments made by section 401 of the SECURE Act apply to any beneficiary of the designated beneficiary. In this situation, the designated beneficiary is treated as an eligible designated beneficiary for purposes of the 10-year payout required by section 401(a)(9)(H)(iii). Accordingly, the death of the designated beneficiary triggers a requirement to complete payment within 10 years of the death of that designated beneficiary. In contrast, if that designated beneficiary died before that effective date, then the amendments made by section 401 of the SECURE Act do not apply with respect to the employee's interest under the plan.

These proposed regulations provide that if an employee in a plan who dies before the section 401(a)(9)(H) effective date for that plan has more than one designated beneficiary, whether the amendments made by section 401 of the SECURE Act apply depends on when the oldest of those beneficiaries dies. Thus, for example, if an employee who died before January 1, 2020, named a see-through trust as the sole beneficiary of the employee's interest in the plan, and the trust has three beneficiaries who are all individuals, then the amendments made by section 401 of the SECURE Act will apply with respect to distributions to the trust upon the death of the oldest trust beneficiary, but only if that beneficiary dies on or after the section 401(a)(9)(H) effective date for that plan. However, if the oldest of the trust beneficiaries died before that effective date, then the amendments made by section 401 of the SECURE Act do not apply with respect to distributions to the trust.

For purposes of applying the statutory effective date, these proposed regulations provide that if, pursuant to section 401(a)(9)(B)(iv), a surviving spouse is waiting to begin distributions until the year for which the employee would have been first required to take distributions, then the spouse is treated as the employee. Thus, in that case, if the spouse died before January 1, 2020, but the spouse's designated beneficiary dies after the section 401(a)(9)(H) effective date for the plan, section 401(a)(9)(H) applies to any beneficiary of the spouse's designated beneficiary

upon the death of that designated beneficiary.

These proposed regulations reflect the statutory delay of the effective date for governmental plans and collectively bargained plans. For this purpose, the determination of whether a plan is a collectively bargained plan is made in accordance with § 1.436-1(a)(5)(ii)(B) (relating to plans under which some participants are not members of collective bargaining units). The proposed regulations also reflect the exception for existing annuity contracts for which an irrevocable election as to the method and the amount of the annuity payments was made before December 20, 2019, as described in section 401(b)(4) of the SECURE Act.

2. Participants in Multiple Plans

These proposed regulations provide that if an employee is a participant in more than one plan, the plans in which the employee participates are not permitted to be aggregated for purposes of testing whether the distribution requirements of section 401(a)(9) are met. This rule is currently in § 1.401(a)(9)-8, Q&A-1, but is moved to § 1.401(a)(9)-1(a)(2) in these proposed regulations.

B. Section 1.401(a)(9)-2—Distributions Commencing During an Employee's Lifetime

Proposed § 1.401(a)(9)-2 provides rules for determining the required beginning date for distributions and whether distributions are treated as having begun during an employee's lifetime. These rules are based on the rules in the existing regulations, except that the rules have been updated to reflect the amendments to the required beginning date made by section 114 of the SECURE Act.

In accordance with section 114(a) of the SECURE Act, these proposed regulations generally provide that the required beginning date is April 1 of the calendar year following the later of (1) the calendar year in which the employee attains age 72, and (2) the calendar year in which the employee retires from employment with the employer maintaining the plan. These proposed regulations also provide that for an employee who was born before July 1, 1949, the required beginning date remains April 1 of the calendar year following the later of (1) the calendar year in which the employee attains age 70

1/2

, and (2) the calendar year in which the employee retires from employment with the employer maintaining the plan. However, if an employee is a 5-percent owner, then the required beginning date is April 1 of the calendar year following the calendar year in which the employee attains age 70

1/2

or 72 (whichever required beginning date applies to the employee as determined using the employee's date of birth), and that required beginning date applies regardless of whether the employee has retired from employment with the employer maintaining the plan.

Section 114(d) of the SECURE Act provides that the amended definition of the required beginning date applies with respect to employees who attain age 70

1/2

on or after January 1, 2020. This effective date provision could be interpreted to require the employee to survive until age 70

1/2

in order to have the amended definition apply (that is, if the employee died before attaining age 70

1/2

, then the amended definition would not apply with respect to distributions to that employee's beneficiary, even if the employee would have attained age 70

1/2

on or after January 1, 2020, had the employee survived). Instead, for ease of administration, these proposed regulations interpret the effective date language to apply the amendments made by section 114 of the SECURE Act to an employee who died before attaining age 70

1/2

if the employee would have attained age 70

1/2

on or after January 1, 2020 (that is, the employee's date of birth is on or after July 1, 1949). This interpretation also extends to a surviving spouse who is waiting to begin distributions pursuant to section 401(a)(9)(B)(iv). Thus, for example, if an employee who was born on June 1, 1952, died in 2018, and the employee's sole beneficiary is the employee's surviving spouse, then the surviving spouse may wait until 2024 (the calendar year in which the employee would have attained age 72) to begin receiving distributions.

C. Section 1.401(a)(9)-3—Death Before Required Beginning Date

Proposed § 1.401(a)(9)-3 provides rules for distributions if an employee dies before the employee's required beginning date. These rules are based on the rules in the existing regulations but are updated to reflect new section 401(a)(9)(H). Because section 401(a)(9)(H) applies only to defined contribution plans, the rules for distributions from defined benefit plans and defined contribution plans have been separated, with the rules for distributions from defined benefit plans set forth in proposed § 1.401(a)(9)-3(b) and the rules for distributions from defined contribution plans set forth in proposed § 1.401(a)(9)-3(c).

Section 401(a)(9)(H)(i) provides for a new 10-year distribution period in certain cases (10-year rule). Specifically, in the case of a defined contribution plan, if an employee who has a designated beneficiary dies before the employee's required beginning date, then section 401(a)(9)(B)(ii) is satisfied if the employee's entire interest is distributed by the end of the calendar year that includes the tenth anniversary of the employee's death. This 10-year rule is similar to the 5-year rule in the existing regulations (under which distributions may be delayed until the end of the fifth calendar year following the calendar year of the employee's death if the employee dies before the required beginning date) and permits distributions to be delayed until the end of the tenth calendar year following the calendar year of the employee's death if the employee dies before the required beginning date.

The 5-year rule is retained in these proposed regulations and continues to apply to a defined benefit plan. It also applies to a defined contribution plan if section 401(a)(9)(H) does not apply to the employee (which could occur if the employee does not have a designated beneficiary or if the employee died before the effective date of section 401(a)(9)(H) and the employee's designated beneficiary elected the 5-year rule).

These proposed regulations retain the rule that permits an employee's interest to be distributed over the designated beneficiary's life or life expectancy in accordance with section 401(a)(9)(B)(iii) (life expectancy payments rule). However, pursuant to section 401(a)(9)(H)(ii), in the case of a defined contribution plan, that rule is available only if the designated beneficiary is an eligible designated beneficiary as defined in section 401(a)(9)(E)(ii). Thus, in the case of a defined contribution plan, if the employee dies before the required beginning date and the employee's designated beneficiary is not an eligible designated beneficiary, the 10-year rule applies.

These proposed regulations also provide that in the case of a defined contribution plan, if the employee has a designated beneficiary who is an eligible designated beneficiary, the plan may provide either that the 10-year rule applies or that the life expectancy payments rule applies. Alternatively, the plan may provide the employee or the eligible designated beneficiary an election between the 10-year rule or the life expectancy payments rule. However, if a defined contribution plan does not include either of those optional provisions and the employee has an eligible designated beneficiary, the plan

must provide for the life expectancy payments rule.

D. Section 1.401(a)(9)-4—Determination of the Designated Beneficiary

Proposed § 1.401(a)(9)-4 provides rules addressing the determination of the employee's beneficiary for purposes of section 401(a)(9) and these proposed regulations are substantially similar to the rules in the existing regulations. In addition to providing rules addressing the new definition of eligible designated beneficiary, these proposed regulations include rules that clarify and simplify the determination of a beneficiary for purposes of section 401(a)(9) in certain situations involving the use of a trust.

A designated beneficiary within the meaning of section 401(a)(9)(E)(i) generally is an individual designated under the plan as a beneficiary who is entitled to a portion of an employee's benefit, contingent on the employee's death or another specified event. If a beneficiary designated under the plan is a person other than an individual, then the employee is treated as not having a designated beneficiary (even if there is an individual who is designated as a beneficiary under the plan). However, if a beneficiary designated under the plan is a see-through trust as described in Section I.D.2 of this Explanation of Provisions, then certain beneficiaries of that trust are treated as the employee's beneficiaries under the plan rather than the trust. In addition, designating a person that is not an individual as a beneficiary under the plan does not cause the employee to be treated as not having a designated beneficiary to the extent separate account treatment applies with respect to that person as described in Section I.H of this Explanation of Provisions.

1. Eligible Designated Beneficiaries

These proposed regulations incorporate the new definition of eligible designated beneficiary in section 401(a)(9)(E)(ii). Specifically, an eligible designated beneficiary is a designated beneficiary who, as of the date of the employee's death, is (1) the surviving spouse of the employee, (2) a child of the employee who has not yet reached the age of majority, (3) disabled, (4) chronically ill, or (5) not more than 10 years younger than the employee.

a. Definition of Age of Majority

Section 401(a)(9)(E)(ii)(II) provides that if the employee's designated beneficiary, as of the date of the employee's death, is a child of the employee who has not yet reached the age of majority (as defined in section 401(a)(9)(F)), then that child is an eligible designated beneficiary. Section 1.401(a)(9)-6, A-15, of the existing regulations provides guidance regarding the application of section 401(a)(9)(F). That regulatory provision does not specify a particular age as a generally applicable age of majority, but provides that a child may be treated as having not reached the age of majority if the child has not completed a specified course of education and is under the age of 26.

The Treasury Department and the IRS have determined that it is necessary to revise the definition of age of majority from the definition used under the existing regulations (the pre-SECURE Act application of which is limited to defined benefit plans and rarely applied). As more plans are expected to apply an age of majority definition, plans may find it difficult to implement the existing standard under which the plan administrator obtains information about the education of an employee's child for purposes of applying section 401(a)(9)(H). Furthermore, because the definition of age of majority is intended to apply to all of an individual's accounts in defined contribution plans, which may be in multiple qualified plans and IRAs, the Treasury Department and the IRS have concluded that the definition, which will determine whether a designated beneficiary is an eligible designated beneficiary across plans and accounts, should not be a plan design choice. The potential for different plans to have different definitions would lead to confusion and complexity for individuals in planning and for their beneficiaries, as well as plan administrators and custodians, in determining payment streams. Accordingly, for purposes of section 401(a)(9)(E)(ii)(II) and (F), these proposed regulations provide that a child of the employee reaches the age of majority on that child's 21st birthday (which accommodates the age of majority definition in all of the States). However, as described in Section I.F of this Explanation of Provisions, the proposed regulations permit defined benefit plans that have used the prior definition of age of majority to retain that plan provision.

b. Definition of Disability

These proposed regulations provide rules for the determination of whether an individual is disabled for purposes of section 401(a)(9). Section 401(a)(9)(E)(ii)(III) applies the definition of disability under section 72(m)(7) for purposes of section 401(a)(9). Section 72(m)(7) provides a standard of disability based on whether an individual is unable to engage in substantial gainful activity. However, for individuals under age 18, that standard may be difficult to apply. Accordingly, if, as of the date of the employee's death, a beneficiary is younger than age 18, the proposed regulations apply a comparable standard that requires the beneficiary to have a medically determinable physical or mental impairment that results in marked and severe functional limitations, and that can be expected to result in death or to be of long-continued and indefinite duration.

These proposed regulations also provide a safe harbor for the determination of whether a beneficiary is disabled. Specifically, if, as of the date of the employee's death, the Commissioner of Social Security has determined that the individual is disabled within the meaning of 42 U.S.C. 1382c(a)(3), then that individual will be deemed to be disabled for purposes of section 401(a)(9).

Pursuant to section 401(a)(9)(E)(ii), the determination of whether a beneficiary is disabled is made as of the date of the employee's death. For example, if, as of the employee's death, the employee's designated beneficiary is the employee's 10-year-old child who is not disabled but who becomes disabled 5 years after the employee's death, then pursuant to section 401(a)(9)(E)(iii) and these proposed regulations, that child's later disability will not be taken into account, and that child will cease to be an eligible designated beneficiary on the child's 21st birthday.

c. Documentation Requirements for Disabled or Chronically Ill Status

These proposed regulations provide that, with respect to a beneficiary who is disabled or chronically ill as of the date of the employee's death, documentation of the disability or chronic illness must be provided to the plan administrator no later than October 31 of the calendar year following the calendar year of the employee's death. If the designated beneficiary is chronically ill under any of the definitions in section 7702B(c)(2)(A) as of the date of the employee's death, the documentation must include a certification by a licensed health care practitioner (as defined in section 7702B(c)(4)) that the designated beneficiary is chronically ill. Additionally, in accordance with section 401(a)(9)(E)(ii)(IV), if the beneficiary is chronically ill under the definition in section 7702B(c)(2)(A)(i), then the documentation also must include a certification from a licensed health care practitioner that, as of the date of the certification, the individual

is unable to perform (without substantial assistance from another individual) at least 2 activities of daily living for an indefinite period that is reasonably expected to be lengthy in nature.

For a designated beneficiary who is an eligible designated beneficiary because, at the time of the employee's death, the designated beneficiary is the employee's minor child and that child also is disabled or chronically ill within the meaning of these proposed regulations, the designated beneficiary will continue to be treated as an eligible designated beneficiary after reaching the age of majority (on account of being disabled or chronically ill) only if these documentation requirements are timely met with respect to that designated beneficiary. Similarly, if the employee's designated beneficiary is the employee's surviving spouse and that spouse also is disabled or chronically ill at the time of the employee's death, then the surviving spouse will be treated as disabled or chronically ill for purposes of the applicable multi-beneficiary trust rules only if the documentation requirements are timely met with respect to the surviving spouse.

d. Other Rules Related to Eligible Designated Beneficiaries

These proposed regulations provide that, if an employee has more than one designated beneficiary and one of them is not an eligible designated beneficiary, then for purposes of section 401(a)(9), the employee generally is treated as not having an eligible designated beneficiary. In addition, these proposed regulations provide that if the surviving spouse is waiting to begin distributions until the year in which the employee would have attained age 72 and the surviving spouse dies before the beginning of that year, then the determination of whether the surviving spouse's designated beneficiary is an eligible designated beneficiary is made by substituting the surviving spouse for the employee (including for purposes of establishing the date as of which that determination is made). For example, a child of the surviving spouse is an eligible designated beneficiary if the child has not yet reached the age of majority as of the date of the surviving spouse's death.

2. Trust as Beneficiary

These proposed regulations retain the see-through trust concept in the existing regulations under which certain beneficiaries of a trust are treated as beneficiaries of the employee if the trust meets the requirements to be a see-through trust. Specifically, to be a see-through trust, the trust must meet the following requirements: (1) The trust is valid under state law or would be valid but for the fact that there is no corpus; (2) the trust is irrevocable or will, by its terms, become irrevocable upon the death of the employee; (3) the beneficiaries of the trust who are beneficiaries with respect to the trust's interest in the employee's benefit are identifiable; and (4) the specified documentation requirements are satisfied.

In response to issues raised in private letter ruling requests and comments submitted to the Treasury Department and the IRS, these proposed regulations provide additional guidance in determining which beneficiaries of the see-through trust are treated as beneficiaries of the employee.

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These proposed rules are consistent with the examples that are in § 1.401(a)(9)-5, Q&A-7(c), of the existing regulations, but address many more fact patterns. The Treasury Department and the IRS intend for these more detailed rules to address many of the issues raised in comment letters and private letter ruling requests and expect that this more comprehensive and definitive guidance will minimize the need for taxpayers to request private letter rulings.

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These proposed regulations provide for the determination of the trust beneficiaries that are treated as beneficiaries of the employee in § 1.401(a)(9)-4(f). In the existing regulations, these provisions were in § 1.401(a)(9)-5.

a. Determining Which See-Through Trust Beneficiaries Are Treated as Beneficiaries of the Employee

1. See-Through Trust Beneficiaries Taken Into Account

Generally, the proposed regulations provide that a beneficiary of a see-through trust is treated as a beneficiary of the employee if the beneficiary could receive amounts in the trust representing the employee's interest in the plan that are neither contingent upon nor delayed until the death of another trust beneficiary who does not predecease (and is not treated as having predeceased)

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the employee.

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For purposes of this rule, a beneficiary is treated as having predeceased the employee if the beneficiary is treated as predeceasing the employee pursuant to a simultaneous death provision or a qualified disclaimer.

Whether any other see-through trust beneficiary also is treated as a beneficiary of the employee depends upon whether the see-through trust is a conduit trust or accumulation trust. A conduit trust is defined in the proposed regulations as a see-through trust, the terms of which provide that all plan distributions will, upon receipt by the trustee, be paid directly to, or for the benefit of, specified beneficiaries. A see-through trust will not fail to be a conduit trust merely because the trust terms do not require an immediate distribution after the death of all of the specified beneficiaries described in the preceding sentence.

For example, if an employee names a conduit trust as the beneficiary of the employee's interest in a plan and the trust terms require all distributions from the plan to the trust during the surviving spouse's life to be distributed immediately to that surviving spouse, then the surviving spouse is treated as a beneficiary of the employee because the surviving spouse could receive amounts in the trust that are neither contingent upon nor delayed until the death of another trust beneficiary. In this case, if distributions have begun from the plan and the surviving spouse dies before the employee's entire interest is distributed, any beneficiary who could receive distributions from the conduit trust at the time of the surviving spouse's death is not treated as a beneficiary of the employee because that beneficiary's ability to receive amounts from the trust is contingent upon the death of the surviving spouse.

An accumulation trust is any see-through trust that is not a conduit trust, and under an accumulation trust, there are potentially more beneficiaries. A beneficiary of an accumulation trust is treated as a beneficiary of the employee if that beneficiary has a residual interest in the portion of the trust representing the employee's interest in the plan (that is, the beneficiary could receive amounts in the trust, representing the employee's interest in the plan, that were not distributed to individuals described in the first paragraph of this Section I.D.2.a.1). For example, assume an employee names a see-through trust as the sole beneficiary of the employee's interest in the plan. The terms of the see-through trust require the trustee to pay specified amounts from the trust to the employee's surviving spouse, and those specified amounts do not include the immediate payment of plan distributions made to the trust. Upon the spouse's death, the see-through trust is to terminate and the amounts remaining in the trust are to be paid to the employee's brother. The surviving spouse is treated as a beneficiary of the employee (because the surviving spouse could receive amounts in the see-through trust that are neither contingent upon nor delayed until the death of another trust beneficiary). Moreover, because not all distributions from the plan to the see-through trust are immediately distributed to a trust

beneficiary, the trust is an accumulation trust. As a result, the employee's brother is treated as a beneficiary of the employee because he has a residual interest in the see-through trust (that is, he could receive amounts in the trust representing the employee's interest in the plan that were not distributed to the surviving spouse).

2. Disregarded Beneficiaries of See-Through Trusts

These proposed regulations also provide for certain beneficiaries of a see-through trust to be disregarded as beneficiaries of the employee for purposes of section 401(a)(9), because they have only minimal or remote interests. Specifically, a see-through trust beneficiary is not treated as a beneficiary of the employee if that beneficiary could receive payments from the trust that represent the employee's interest in the plan only after the death of another trust beneficiary whose sole interest is a residual interest in the trust (as described in the preceding paragraph) and who did not predecease (and is not treated as having predeceased) the employee. Thus, using the example in the preceding paragraph, assume the see-through trust terms provide that if the employee's brother survives the employee but predeceases the surviving spouse, then the amounts remaining in the trust after the death of the surviving spouse are to be paid to a charity. In that case, the charity is disregarded as a beneficiary of the employee because the charity could receive only amounts in the trust that are contingent upon the death of the employee's brother, whose only interest was a residual interest (that is, an interest in the amounts remaining in the trust after the death of the surviving spouse). In contrast, the charity would be treated as a beneficiary of the employee if the brother could receive amounts in the trust not subject to any contingencies or contingent upon an event other than the death of the surviving spouse (such as the surviving spouse's remarriage).

These proposed regulations provide another exception under which a see-through trust beneficiary with a residual interest is disregarded as a beneficiary of the employee because the beneficiary would have only a minimal or remote interest in the trust. These proposed regulations provide that if the see-through trust terms require a full distribution of amounts in the trust representing the employee's interest in the plan to a specified individual described in the first paragraph of Section I.D.2.a.1 of this Explanation of Provisions by the later of: (1) The calendar year following the calendar year of the employee's death; and (2) the end of the tenth calendar year following the calendar year in which that specified individual attains the age of majority, then any other beneficiary whose sole entitlement to distributions is conditioned on the unlikely event that specified individual dies before the full distribution is required is disregarded as a beneficiary of the employee.

To illustrate this exception, assume an employee names a see-through trust as the sole beneficiary, the trust permits specified amounts to be paid to the employee's niece until the niece reaches age 31 (age of majority plus 10 years), and those specified amounts are not required to include the immediate payment of plan distributions made to the trust. The trust is scheduled to terminate with a full distribution of all trust assets to the niece when the niece reaches age 31, but if the niece dies before this scheduled termination, then the amounts remaining in the trust will be paid to the employee's sibling. In that case, the only beneficiary designated under the plan for purposes of section 401(a)(9) and these regulations is the employee's niece because the employee's sibling is disregarded under the exception described in the preceding paragraph. However, if the see-through trust terms do not require a full distribution of amounts in the trust representing the employee's interest in the plan until the niece reaches age 35, then this exception does not apply, and both the employee's niece and sibling are treated as beneficiaries designated under the plan for purposes of section 401(a)(9) and these regulations.

b. Identifiability of Trust Beneficiaries

These proposed regulations retain the requirement from the existing regulations that the employee's beneficiaries (including beneficiaries of a see-through trust) be identifiable, but modify the definition of identifiability in light of the enactment of section 401(a)(9)(H). Generally, trust beneficiaries are identifiable if it is possible to identify each person designated by the employee as eligible to receive a portion of the employee's interest in the plan through the trust. Under the proposed regulations, if an employee names a class of individuals as the beneficiary (such as the employee's grandchildren), the addition of another member of that class (for example, the birth of another grandchild) will not cause the trust to fail to meet the identifiability requirements.

These proposed regulations provide another exception to the general identifiability rule under which a trust will not fail to satisfy the identifiability requirements merely because an individual has a power of appointment with respect to a portion of the employee's interest in the plan. Specifically, these proposed regulations provide that if, by September 30 of the calendar year following the calendar year of the employee's death, the power is exercised in favor of one or more beneficiaries that are identifiable or is restricted so that any appointment made at a later time may only be made in favor of one or more identifiable beneficiaries, then all of those identifiable beneficiaries are taken into account as beneficiaries of the employee. If the power is not exercised by that September 30 in favor of one or more beneficiaries that are identifiable (and is not so restricted) then each taker in default (that is, each person who would be entitled to the portion subject to the power if that power is not exercised) is treated as a beneficiary of the employee.

These proposed regulations include a rule that applies when a beneficiary is added who was not initially taken into account in determining the employee's beneficiaries. Under this rule, if a beneficiary is added after September 30 of the calendar year following the calendar year of the employee's death (for example, if an individual exercises a power of appointment after that September 30), then the determination of whether there is no designated beneficiary because one of the employee's beneficiaries is not an individual, and the rules relating to multiple designated beneficiaries described in Sections I.D.1.d and I.E.3.d of this Explanation of Provisions must be applied taking into account the new beneficiary along with all of the beneficiaries that were taken into account before the addition of the new beneficiary. However, if the addition of the beneficiary would cause a full distribution of the employee's interest in the plan to be required pursuant to section 401(a)(9)(H) during the calendar year in which the beneficiary is added or in an earlier calendar year (and a full distribution would not have been required in the absence of the new beneficiary), then the proposed regulations provide that the full distribution is not required until the end of the calendar year following the calendar year in which the beneficiary was added.

To illustrate this rule, assume an employee named a see-through trust as the beneficiary of the employee's

interest in the plan, the terms of the trust require the trustee to pay specified amounts from the trust to the employee's surviving spouse, and those specified amounts do not require the immediate payment of plan distributions made to the trust. In this case, the trust is an accumulation trust. The trust terms also provide the spouse with a testamentary power of appointment to name the beneficiary of any portion of the employee's interest in the plan that has not been distributed before the surviving spouse dies, but in the absence of an appointment, the employee's only child is entitled to that residual interest in the trust. If the power of appointment is not exercised by September 30 of the calendar year following the calendar year of the employee's death, then the trust does not fail to satisfy the identifiability requirements, and both the employee's surviving spouse and child are treated as beneficiaries of the employee. If, after that September 30, the surviving spouse exercises the power by naming the spouse's sibling as the beneficiary of the residual interest in the trust, then the employee's surviving spouse, the employee's child, and the spouse's sibling are all taken into account when applying the rules for multiple designated beneficiaries for each calendar year after the year during which the sibling is added as a beneficiary.

These proposed regulations also provide that a see-through trust will not fail to satisfy the identifiability requirements merely because the trust is subject to state law that permits the trust terms to be modified after the death of the employee (such as by a court reformation, through a decanting, or otherwise), thus permitting a change in the beneficiaries of the trust. If a beneficiary of a see-through trust is removed through a modification of the trust terms by September 30 of the calendar year following the calendar year of the employee's death, the proposed regulations provide that the beneficiary that was removed is disregarded as a beneficiary of the employee for purposes of section 401(a)(9) and these regulations. Similarly, if a beneficiary is added pursuant to such a modification, that beneficiary is taken into account as a beneficiary of the employee for purposes of section 401(a)(9) and these regulations. However, if a beneficiary is added pursuant to such a modification after that September 30, then the rules that apply to a beneficiary that is added pursuant to a power of appointment will apply also to a beneficiary that is added pursuant to the modification.

c. Applicable Multi-Beneficiary Trusts

These proposed regulations also provide guidance on a particular type of see-through trust defined in section 401(a)(9)(H)(v) as an applicable multi-beneficiary trust. Specifically, these proposed regulations define two types of applicable multi-beneficiary trusts. A type I applicable multi-beneficiary trust is an applicable multi-beneficiary trust, the terms of which provide that the trust is to be divided immediately upon the death of the employee into separate trusts for each beneficiary (as described in section 401(a)(9)(H)(iv)(I)). A type II applicable multi-beneficiary trust is an applicable multi-beneficiary trust, the terms of which provide that no individual other than a disabled or chronically ill eligible designated beneficiary 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 (as described in section 401(a)(9)(H)(iv)(II)).

When dividing a type I applicable multi-beneficiary trust, one of the separate trusts could be a type II applicable multi-beneficiary trust. Thus, if a type I applicable multi-beneficiary trust is divided into separate trusts and one of the separate trusts satisfies the requirements to be a type II applicable multi-beneficiary trust, then the beneficiaries of that separate trust who are not disabled or chronically ill are disregarded as beneficiaries of the employee for purposes of section 401(a)(9) and these regulations. However, for any separate trust that does not satisfy the requirements to be a type II applicable multi-beneficiary trust, the beneficiaries of that separate trust are treated as beneficiaries of the employee for purposes of section 401(a)(9) and these regulations.

The Treasury Department and the IRS are aware of concerns related to the application of the amendments made by section 401 of the SECURE Act to section 401(a)(9) of the Code in the case of a trust with terms intended to ensure that a disabled individual who is a beneficiary of the trust remains eligible for means-tested government benefits. The Treasury Department and the IRS request comments on whether under applicable law a trust for a disabled individual (for example, a supplemental needs trust) could include terms providing that the disabled individual would lose the individual's interest in the trust in the event the interest would disqualify the individual for means-tested government benefits and still satisfy the requirements under the Code to be a type II applicable multi-beneficiary trust. Specifically, comments are requested on whether this type of provision may be included in a trust (thereby allowing a disabled individual to continue to qualify for means-tested government benefits), while not providing for trust payments to any other beneficiary until the death of the disabled individual.

3. Other Rules Related to Designated Beneficiaries.

a. Special Rules for Multiple Designated Beneficiaries

As described in the first paragraph of Section I.D.1.d of this Explanation of Provisions, these proposed regulations provide a general rule under which, if an employee has more than one designated beneficiary, and at least one of them is not an eligible designated beneficiary, then for purposes of section 401(a)(9), the employee is treated as not having an eligible designated beneficiary. As a result, the employee's interest must be distributed no later than the end of the tenth calendar year following the calendar year of the employee's death.

These proposed regulations include two exceptions to this general rule that allow an eligible designated beneficiary to use the life expectancy rule even if there is another designated beneficiary who is not an eligible designated beneficiary. The first exception is that if any of the employee's designated beneficiaries is a child of the employee who, as of the date of the employee's death, has not yet reached the age of majority, then the employee is still treated as having an eligible designated beneficiary (which allows payments to continue until 10 years after the child reaches the age of majority even if there are other designated beneficiaries who are not eligible designated beneficiaries). The second exception is if the see-through trust is a type II applicable multi-beneficiary trust, then the beneficiaries who either are disabled or chronically ill are treated as eligible designated beneficiaries without regard to whether any of the other trust beneficiaries are not eligible designated beneficiaries.

To illustrate these rules, if an employee who is a participant in a defined contribution plan names a see-through trust as the sole beneficiary of the employee's interest in the plan, and the trust beneficiaries are the employee's surviving spouse and the employee's adult child who is not disabled or chronically ill, then the employee is treated as not having an eligible designated beneficiary. As a

result, the employee's entire interest must be distributed no later than 10 years after the employee's death. However, if there is another designated beneficiary who is the employee's child and who, as of the date of the employee's death, has not yet reached the age of majority, then, under the exception described in the preceding paragraph, the employee is treated as having an eligible designated beneficiary. In that second situation, if the trust is receiving annual distributions using the life expectancy rule, then a full distribution from the plan would not be required until ten years after the minor child reaches the age of majority.

b. Determining the Beneficiary for Purposes of Calculating the Required Minimum Distribution

These proposed regulations largely retain the rules of the existing regulations related to determining who is a beneficiary for purposes of section 401(a)(9), so that a person is a beneficiary if that person is a beneficiary designated under the plan as of the date of the employee's death and remains a beneficiary as of September 30 of the calendar year following the calendar year in which the employee died. For this purpose, a beneficiary need not be specified by name in order to be designated under the plan, provided the beneficiary is identifiable pursuant to the designation.

The existing regulations provide that a beneficiary is disregarded if certain events occur before September 30 of the calendar year following the calendar year in which the employee dies. In response to issues raised in private letter ruling requests and comments submitted to the Treasury Department and the IRS, these proposed regulations provide an exclusive list of events that permit a beneficiary to be disregarded. Specifically, the proposed regulations provide that if any of the following events occurs by September 30 of the calendar year following the calendar year in which the employee dies with respect to a person who was a beneficiary as of the employee's date of death, then that person will be disregarded in identifying the beneficiaries of the employee for purposes of section 401(a)(9): (1) The individual predeceases the employee; (2) the individual is treated as having predeceased the employee pursuant to a simultaneous death provision or pursuant to a qualified disclaimer that satisfies section 2518 and applies to the entire interest to which the beneficiary is entitled; or (3) the person receives the entire benefit to which the person is entitled.

To illustrate the rule in the preceding paragraph, if an individual makes a disclaimer satisfying section 2518 that applies to the individual's entire interest (including the requirement that the disclaimer be made within 9 months of the employee's death), that individual is not treated as a beneficiary for purposes of section 401(a)(9). However, if the disclaimer is executed more than 9 months after the employee's death, then that individual will not be disregarded for purposes of identifying the beneficiaries. As another example, assume a see-through trust is designated as a beneficiary of the employee's interest in the plan and that trust could be liable for expenses of administering and distributing the deceased employee's estate at death. In this case, the decedent's estate is treated as a beneficiary of the employee designated under the plan because some portion of the employee's interest in the plan may be used for the payment of those administration expenses, thus satisfying an obligation of the estate. However, if all of those expenses that could be paid from the employee's interest in the plan are paid by September 30 of the calendar year following the calendar year in which the employee died (so that by that date, the deceased employee's estate received the entire interest to which it was entitled), then the deceased employee's estate is disregarded, and the other beneficiaries of the see-through trust are considered beneficiaries of the employee.

E. Section 1.401(a)(9)-5—Required Minimum Distributions From Defined Contribution Plans

1. In General

Proposed § 1.401(a)(9)-5 retains the general method in the existing regulations by which a required minimum distribution from a defined contribution plan is calculated in any calendar year when an employee dies on or after the required beginning date or when an employee's eligible designated beneficiary is taking life expectancy payments after an employee dies before the required beginning date. Specifically, the required minimum distribution for a calendar year is determined by dividing the employee's account balance as of the end of the prior year by an applicable divisor. The existing regulations refer to the divisor as the applicable distribution period. However, in light of the amendments made by section 401 of the SECURE Act that may result in different distribution periods, these proposed regulations refer to the divisor as the applicable denominator. In addition to the requirement to take annual required minimum distributions, the proposed regulations implement those amendments by requiring that a full distribution of the remaining interest be taken in certain circumstances.

These proposed regulations also update the list of amounts of distributions and deemed distributions that are not taken into account in determining whether the required minimum distribution has been made for a calendar year. Under the proposed regulations, that list is implemented by a cross-reference to a list of amounts in § 1.402(c)-2(c)(3) (relating to amounts that are not treated as eligible rollover distributions). The effect of the new cross-reference is to add the following items to the list of amounts that are disregarded for purposes of determining the required minimum distribution from a defined contribution plan: Prohibited allocations that are treated as deemed distributions pursuant to section 409(p), distributions of premiums for health and accident insurance, deemed distributions with respect to a collectible pursuant to section 408(m), and distributions that are permissible withdrawals from an eligible automatic contribution arrangement within the meaning of section 414(w).

2. Distributions While the Employee Is Alive

These proposed regulations provide that, in determining the required minimum distribution for a distribution calendar year beginning while the employee is alive, the employee divides the account balance as of December 31 of the preceding calendar year by the employee's applicable denominator. Generally, the applicable denominator is determined using the Uniform Lifetime Table in § 1.401(a)(9)-9(c). However, if the employee's sole beneficiary is the employee's spouse who is more than 10 years younger than the employee, then the applicable denominator is determined using the Joint and Last Survivor Table in § 1.401(a)(9)-9(d) (providing for a longer payout period).

3. Distributions After the Employee's Death

a. Requirement To Satisfy Both Section 401(a)(9)(B)(i) and (ii) in the Case of an Employee Who Dies on or After the Required Beginning Date

Section 401(a)(9)(B)(i) provides rules that apply if an employee dies after benefits have commenced. While the 5-year rule under section 401(a)(9)(B)(ii)

(expanded to a 10-year rule in certain cases by section 401(a)(9)(H)(i)(I)) generally applies if an employee dies before the employee's required beginning date, section 401(a)(9)(H)(i)(II) provides that section 401(a)(9)(B)(ii) applies whether or not distributions have commenced. Accordingly, if an employee dies after the required beginning date, distributions to the employee's beneficiary for calendar years after the calendar year in which the employee died must satisfy section 401(a)(9)(B)(i) as well as section 401(a)(9)(B)(ii). In order to satisfy both of these requirements, these proposed regulations provide for the same calculation of the annual required minimum distribution that was adopted in the existing regulations but with an additional requirement that a full distribution of the employee's entire interest in the plan be made upon the occurrence of certain designated events (discussed in section I.E.3.c. of this Explanation of Provisions).

b. Determination of Applicable Denominator

If an employee died on or after the required beginning date (or the employee died before the required beginning date and the employee's eligible designated beneficiary is taking life expectancy distributions in accordance with section 401(a)(9)(B)(iii) and these proposed regulations), then for calendar years after the calendar year in which the employee died, the applicable denominator generally is the remaining life expectancy of the designated beneficiary. The beneficiary's remaining life expectancy generally is calculated using the age of the beneficiary in the year following the calendar year of the employee's death, reduced by one for each subsequent calendar year.

However, as an exception to these general rules, if the employee's spouse is the employee's sole beneficiary, then the applicable denominator during the spouse's lifetime is the spouse's life expectancy (which reflects a recalculation in accordance with section 401(a)(9)(D)). In this case, for calendar years after the calendar year in which the spouse died, in determining the required minimum distribution to the spouse's beneficiary, the applicable denominator is the spouse's life expectancy calculated in the calendar year in which the spouse died, reduced by one for each subsequent calendar year.

If the employee has no designated beneficiary, then the applicable denominator is the employee's life expectancy calculated in the calendar year in which the employee died, reduced by one for each subsequent calendar year. This applicable denominator is also used in the case of an employee who died after the required beginning date and who was younger than the designated beneficiary.

c. Full Distribution Required in Certain Circumstances

In order to satisfy the 5-year rule of section 401(a)(9)(B)(ii) (or, if applicable, the exception to that rule in section 401(a)(9)(B)(iii), taking into account section 401(a)(9)(H), and (E)(iii)), these proposed regulations provide that, if an employee's interest is in a defined contribution plan to which section 401(a)(9)(H) applies, then the employee's entire interest in the plan must be distributed by the earliest of the following dates:

(1) The end of the tenth calendar year following the calendar year in which the employee died if the employee's designated beneficiary is not an eligible designated beneficiary;

(2) The end of the tenth calendar year following the calendar year in which the designated beneficiary died if the employee's designated beneficiary was an eligible designated beneficiary;

(3) The end of the tenth calendar year following the calendar year in which the beneficiary reaches the age of majority if the employee's designated beneficiary is the child of the employee who has not yet reached the age of majority as of the date of the employee's death; and

(4) The end of the calendar year in which the applicable denominator would have been less than or equal to one if it were determined using the beneficiary's remaining life expectancy, if the employee's designated beneficiary is an eligible designated beneficiary, and if the applicable denominator is determined using the employee's remaining life expectancy.

For example, if an employee died after the required beginning date with a designated beneficiary who is not an eligible designated beneficiary, then the designated beneficiary would continue to have required minimum distributions calculated using the beneficiary's life expectancy as under the existing regulations for up to nine calendar years after the employee's death. In the tenth year following the calendar year of the employee's death, a full distribution of the employee's remaining interest would be required.

Similarly, if an employee died after the required beginning date with an eligible designated beneficiary, then the eligible designated beneficiary would continue to have required minimum distributions calculated during the beneficiary's lifetime using the rules under the existing regulations. However, if the eligible designated beneficiary dies before the entire interest of the employee is distributed, then the beneficiary of that eligible designated beneficiary would continue taking annual distributions using the rules under the existing regulations for up to nine years after the death of the eligible designated beneficiary. In the tenth year following the calendar year of the eligible designated beneficiary's death, a full distribution of the employee's remaining interest would be required.

If the employee's designated beneficiary is a child of the employee who, as of the employee's death, has not yet reached the age of majority, then the child would have annual required minimum distributions calculated during the child's lifetime using the rules of the existing regulations. However, those distributions would be permitted to be paid for up to only nine years after the child reaches the age of majority with a full distribution of the employee's remaining interest required in the tenth year following the calendar year in which the child reaches the age of majority.

As another example, if an employee died at age 75 after the required beginning date and the employee's non-spouse eligible designated beneficiary was age 80 at the time of the employee's death, the applicable denominator would be determined using the employee's remaining life expectancy. However, these proposed regulations require a full distribution of the employee's remaining interest in the plan in the calendar year in which the applicable denominator would have been less than or equal to one if it were determined using the beneficiary's remaining life expectancy (even though the applicable denominator for determining the required minimum distribution is based on the remaining life expectancy of the employee). In this case, based on the beneficiary's life expectancy of 11.2 in the year of the employee's death, a full distribution would be required in the year the beneficiary reaches age 91 (because in the 11th calendar year after the employee's death the beneficiary's life expectancy would be less than or equal to one).

d. Multiple Designated Beneficiaries

These proposed regulations include a modified version of the general rule adopted in the existing regulations that applies if an employee has more than one designated beneficiary. Specifically, instead of determining the applicable

denominator using the beneficiary with the shortest life expectancy, these proposed regulations provide that the applicable denominator is determined using the life expectancy of the oldest designated beneficiary. The proposed regulations provide that whether a full distribution is required also generally is determined using the oldest of the designated beneficiaries. For example, if an employee has multiple eligible designated beneficiaries who are born in the same calendar year, then full distribution of the employee's remaining interest generally is required by the tenth calendar year following the death of the oldest designated beneficiary.

These general rules for multiple designated beneficiaries are subject to certain exceptions. Under one exception, if the employee's beneficiary is a type II applicable multi-beneficiary trust, then only the disabled and chronically ill beneficiaries of the trust are taken into account in determining the oldest designated beneficiary. Thus, the ages of the other beneficiaries are disregarded in determining the applicable denominator, and the death of the last of the disabled or chronically ill trust beneficiaries triggers the 10-year payout requirement under section 401(a)(9)(H)(iii).

Under a second exception to the general rule, if any of the employee's designated beneficiaries is a child of the employee who has not yet reached the age of majority as of the date of the employee's death, then, in applying the requirement to make a full distribution by the tenth year following the death of the oldest eligible designated beneficiary, only the employee's children who are designated beneficiaries and who are under the age of majority at the employee's date of death are taken into account. Thus, in a situation involving one or more designated beneficiary children under the age of majority and one or more older designated beneficiaries, the death of an older designated beneficiary will not result in a requirement to pay a full distribution before the oldest child attains the age of majority plus ten years. In this case, a full distribution of the employee's remaining interest is not required until the tenth calendar year following the calendar year in which the oldest child of the employee who is a designated beneficiary and who had not attained the age of majority as of the employee's death reaches the age of majority (or, if earlier, the tenth calendar year following the calendar year of that child's death).

To illustrate these rules, assume an employee died at the age of 75 after the employee's required beginning date, and the employee named a see-through trust that is an accumulation trust as the employee's beneficiary under the plan. The terms of the trust require specified amounts to be paid to the employee's surviving spouse (who was age 74 at the time of the employee's death). Upon the spouse's death, the trust will terminate and the amounts remaining in the trust that have not been paid to the spouse will be paid to the employee's sibling (who was age 67 at the time of the employee's death). If the employee's sibling predeceases the surviving spouse, the amounts remaining in the trust that have not been paid to the surviving spouse will be paid to a charity. In this case, the charity is disregarded as a beneficiary of the employee (as described in Section I.D.2.a.2 of this Explanation of Provisions), and all of the other trust beneficiaries are eligible designated beneficiaries (a surviving spouse and a beneficiary who is not more than 10 years younger than the employee). Under these proposed regulations, required minimum distributions are made to the trust beginning in the calendar year after the calendar year of the employee's death using the surviving spouse's remaining life expectancy, because the surviving spouse is the oldest beneficiary of the employee. Upon the surviving spouse's death, annual distributions must continue to the trust using the surviving spouse's remaining life expectancy in the calendar year of the spouse's death, reduced by one in each subsequent calendar year. In addition, the entire interest of the employee must be distributed no later than the tenth calendar year following the calendar year of the spouse's death.

F. Section 1.401(a)(9)-6—Required Minimum Distributions From Defined Benefit Plans

Proposed § 1.401(a)(9)-6 provides rules for required minimum distributions from defined benefit plans and from annuity contracts that are annuitized to pay benefits under defined contribution plans. These rules are based on the existing regulations and are updated to reflect the amendments to section 401(a)(9) of the Code made by section 114 of the SECURE Act regarding the required beginning date and actuarial increases.

1. Rules Applicable to Defined Benefit Plans

a. Actuarial Increase for Employees Retiring After Age 70

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These proposed regulations address the actuarial increase required under section 401(a)(9)(C)(iii). Section 401(a)(9)(C)(iii) provides that, if section 401(a)(9)(C)(i)(II) applies to an employee and the employee retires in a calendar year after the calendar year in which the employee attains age 70

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, then the employee's accrued benefit must be actuarially increased to take into account the period after age 70

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during which the employee was not receiving any benefits under the plan. Section 401(a)(9)(C)(ii)(I) provides that section 401(a)(9)(C)(i)(II) (providing a required beginning date based on the calendar year in which the employee retires) does not apply to an employee who is a 5-percent owner (as defined in section 416) for the plan year ending in the calendar year in which the employee attains age 72.

The proposed regulations reflect that the required actuarial increase under section 401(a)(9)(C)(iii) does not apply to a 5-percent owner. This is because the actuarial increase is limited to employees to whom section 401(a)(9)(C)(i)(II) applies (and section 401(a)(9)(C)(ii)(I) provides that section 401(a)(9)(C)(i)(II) generally does not apply in the case of an employee who is a 5-percent owner). Thus, the required actuarial increase applies to an employee other than a 5-percent owner who retires in a calendar year after the calendar year in which the employee attains age 70

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.

These proposed regulations, like the existing regulations, reflect the exception from the requirements of section 401(a)(9)(C)(iii) provided under section 401(a)(9)(C)(iv) for governmental plans and church plans. Section 401(a)(9)(C)(iv) specifies that for purposes of section 401(a)(9), a church plan is a plan maintained by a church for church employees, and a church is any church within the meaning of section 3121(w)(3)(A) or any qualified church-controlled organization within the meaning of section 3121(w)(3)(B). These proposed regulations clarify that the determination of whether an employee is a church employee is made without regard to whether the employee would be considered an employee of a church under section 414(e)(3)(B). Therefore, a plan for the employees of a tax-exempt organization that is not a church or a qualified church-controlled organization must provide an actuarial increase for an employee who retires in a calendar year after the calendar year

in which the employee reaches age 70

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.

b. Interaction of Benefit Restrictions Under Section 436(d) and Minimum Distribution Requirements Under Section 401(a)(9)

Under section 436(d), a plan is required to provide certain limitations on accelerated benefit distributions. Under section 436(d)(1), if the plan's annual funding target attainment percentage (AFTAP) for a plan year is less than 60 percent, the plan must not make any prohibited payment (that is, a payment in excess of the monthly amount paid under a single life annuity or a payment for the purchase of an irrevocable commitment from an insurer to pay benefits) after the valuation date for the plan year. Under section 436(d)(2), if the plan sponsor is in bankruptcy proceedings, the plan may not pay any prohibited payment unless the plan's enrolled actuary certifies that the AFTAP of the plan is at least 100 percent. Under section 436(d)(3), if the plan's AFTAP for a plan year is at least 60 percent but is less than 80 percent, the plan must not pay any prohibited payment to the extent the payment exceeds the lesser of (1) 50 percent of the amount otherwise payable under the plan, and (2) the present value of the maximum Pension Benefit Guaranty Corporation guarantee with respect to a participant.

If an employee dies before the required beginning date and distributions are being made in accordance with section 401(a)(9)(B)(ii), then the entire interest of the employee generally must be distributed within 5 years of the employee's death (the 5-year rule). Because compliance with this requirement under section 401(a)(9)(B)(ii) may conflict with the requirements of section 436(d), these proposed regulations provide an exception to the 5-year rule so that a plan will not fail to comply with those requirements merely because payments by the plan are restricted by section 436(d). Under this provision, benefits that are required to be paid under the 5-year rule may extend past the section 401(a)(9)(B)(ii) deadline for full payment provided that the payments (1) start by the fifth year after the employee's death, and (2) are paid in a form that is as accelerated as permitted under section 436(d).

2. Rules Applicable to Annuity Contracts

a. Annuity Providers Must Be Licensed

Like the existing regulations, these proposed regulations provide that, for either a defined benefit plan or a defined contribution plan, the required minimum distribution rules may be satisfied through the purchase, with the employee's entire interest in the plan, of an annuity contract that provides periodic annuity payments for the employee's life (or the joint lives of the employee and beneficiary) or over a period certain. These proposed regulations add a rule that, for this purpose, the annuity contract must be issued by an insurance company licensed in the jurisdiction where the annuity is sold. However, pursuant to § 1.403(b)-6(e)(5), this rule does not apply to an annuity paid under a retirement income account that is described in section 403(b)(9).

b. Qualified Longevity Annuity Contracts

In 2014, the Treasury Department and the IRS amended the regulations under section 401(a)(9) in order to facilitate the purchase, under a defined contribution plan, of a deferred annuity that commences annuity payments at an advanced age. See 79 FR 37633. Those modifications apply to an annuity contract that satisfies certain requirements, including a requirement that distributions commence not later than age 85. Prior to annuitization, the value of this type of contract, referred to as a Qualified Longevity Annuity Contract (QLAC), is excluded from the account balance used to determine required minimum distributions.

Section 1.401(a)(9)-6, A-17(a)(4), of the existing regulations provides that a QLAC may not make available any commutation benefit, cash surrender value, or other similar feature. These proposed regulations would change this rule so that this prohibition applies only after the required beginning date. This change is proposed so that if a plan's investment options include a series of target date funds to which the relief under Notice 2014-66, 2014-46 I.R.B. 820 applies,

7

those target date funds would be permitted to include QLACs among their assets.

7

Notice 2014-66 provides relief under section 401(a)(4) to enable plans to provide lifetime income by offering, as investment options, a series of target date funds that include deferred annuities among their assets, even if some of the target date funds within the series are available only to older participants.

3. Other Rules

a. Increasing Payments

Like the existing regulations, these proposed regulations generally provide that all payments under a defined benefit plan or annuity contract must be nonincreasing, subject to a number of exceptions. These proposed regulations retain the exceptions in the existing final regulations and add to the list of circumstances under which annuity payments under a defined benefit plan may increase. Under the proposed regulations, annuity payments may increase as a result of the resumption of benefits that were suspended pursuant to section 411(a)(3)(B) (for a retiree whose benefits were suspended on account of employment after commencement of benefits and then resume after the suspension of benefits ends). In addition, annuity payments may increase as a result of the resumption of benefits that were suspended pursuant to section 418E (for an insolvent plan) or section 432(e)(9) (for a participant or beneficiary of a plan in critical and declining status whose benefits have been suspended under section 432(e)(9), if the suspension of benefits consists of a temporary reduction of benefits or if suspended benefits resume because of a failure to meet the conditions of section 432(e)(9)(C)).

The existing regulations provide a number of exceptions under which payments from annuity contracts purchased from insurance companies may increase, and certain of these exceptions apply only if the total future expected payments under the contract exceed the total value being annuitized. These proposed regulations make a minor modification to the rules to clarify the calculation of the total future expected payments and the total value being annuitized. Specifically, these proposed regulations modify the determination of the total value being annuitized by providing that the total value is calculated as of the date on which the contract is annuitized. This modification (under which this determination is made as of the date on which the contract is annuitized, rather than the date on which payments on the annuitized contract begin as specified in § 1.401(a)(9)-6, A-14(e)(1)(i) of the existing regulations), will have an effect only in situations in which the contract is annuitized on a date earlier than the date on which payments begin. In addition, these proposed regulations update the examples illustrating these rules to reflect the mortality rates in § 1.401(a)(9)-9.

These proposed regulations also provide three additional exceptions to the nonincreasing payments requirement for annuities issued by insurance companies that apply without regard to a comparison of the total future expected payments and the total value being annuitized. Two of these exceptions have been added because

commentors have identified that certain policy features are popular with policyholders and these features do not have a material impact on the amount of expected payments. First, these proposed regulations allow an annuity contract to provide a final payment upon the death of the employee that does not exceed the excess of total value being annuitized over the total of payments before the death of the employee. Second, these proposed regulations allow an annuity contract to offer a short-term acceleration of payments, under which up to one year of annuity payments are paid in advance of when those payments were scheduled to be made. In addition, to facilitate compliance, these proposed regulations provide a third exception that allows an annuity contract to provide an acceleration of payments that is required to comply with section 401(a)(9)(H).

b. Payments to Children

These proposed regulations amend the existing rules governing when, pursuant to section 401(a)(9)(F), payment of an employee's accrued benefit to a child may be treated as if the payments were made to a surviving spouse. These rules are the same as under the existing regulations except, as discussed in Section I.D.1.a of this Explanation of Provisions, these proposed regulations specify that an individual reaches the age of majority for purposes of sections 401(a)(9)(E)(ii)(II) and (F) on that individual's 21st birthday.

Under these proposed regulations, a plan's terms that define the age of majority that were adopted on or before February 24, 2022 and met the requirements of § 1.401(a)(9)-6, A-15 of the existing regulations are not required to be amended to reflect this change, and the plan may continue to use that plan definition of the age of majority for purposes of section 401(a)(9)(F). Moreover, because a governmental plan is subject only to a reasonable, good faith standard in complying with the rules of section 401(a)(9), the plan terms of a governmental plan may use a definition of the age of majority for purposes of section 401(a)(9)(F) that meets the requirements of § 1.401(a)(9)-6, A-15 of the existing regulations, even if the plan terms that define age of majority are adopted after that date.

G. Section 1.401(a)(9)-7—Rollovers and Transfers

Proposed § 1.401(a)(9)-7 retains the rollover and transfer rules that are in the existing regulations.

H. Section 1.401(a)(9)-8—Special Rules

Proposed § 1.401(a)(9)-8 provides special rules applicable to satisfying the minimum distribution requirement. These include separate account treatment for beneficiaries, the definition of spouse (updated to include the post-

Obergefell

regulations under § 301.7701-18), application of the qualified domestic relations order (QDRO) rules, and the applicability of elections under section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act of 1982, Public Law 97-248, 96 Stat. 324 (1982) (TEFRA).

The proposed regulation generally retains the separate account rules applicable to beneficiaries after the death of the employee that were adopted in the existing regulations, including the rule that prohibits separate application of section 401(a)(9) to separate interests in a trust. However, in light of the new applicable multi-beneficiary trust rules provided in section 401(a)(9)(H)(iv), these proposed regulations provide an exception to that prohibition that would permit separate application of section 401(a)(9) to the separate subtrusts of a type I applicable multi-beneficiary trust.

These proposed regulations also clarify the rules under which section 401(a)(9) is applied separately with respect to the separate interests of each of the employee's beneficiaries under a plan, provided that the separate accounting requirements are satisfied. Those separate accounting requirements include:

(1) Any post-death distribution with respect to a beneficiary's interest must be allocated to the separate account of that beneficiary;

(2) All post-death investment gains and losses, contributions, and forfeitures, for the period prior to the establishment of the separate accounts must be allocated on a pro rata basis in a reasonable and consistent manner among the separate accounts; and

(3) The investment return with respect to the investments held in the separate accounts that were established for the separate interests of the beneficiaries must be allocated to those separate accounts.

However, if the separate accounting requirements are not satisfied until after the end of the calendar year following the calendar year of the employee's death, then, for calendar years after the separate accounting requirements are satisfied: (1) The required minimum distribution is determined without regard to the separate accounts; (2) the aggregate distribution is allocated among the beneficiaries based on each beneficiary's share of the total remaining balance of the employee's interest; and (3) the allocated share for each beneficiary must be distributed to each respective beneficiary.

I. Section 1.401(a)(9)-9—Life Expectancy and Distribution Period Tables

These proposed regulations include minor changes to existing provisions of § 1.401(a)(9)-9 to conform the terminology in that section to the new terminology used in proposed § 1.401(a)(9)-5. For example, references to the “applicable distribution period” have been changed to refer to the “applicable denominator.”

II. Section 402(c) Regulations

These proposed regulations provide updates to existing rules of § 1.402(c)-2 that reflect statutory amendments made to section 402(c) since the regulations were issued in 1995. Those amendments are described in the Background section of this Preamble under the heading “Section 402(c)—Rollovers.”

A. Exclusion From Income of Amount Rolled Over

These proposed regulations provide that, if an employee receives an eligible rollover distribution and rolls it over to any eligible retirement plan within 60 days of the distribution (including any amount withheld under section 3405(c)), then the distribution generally is not includible in gross income. However, if any portion of the eligible rollover distribution is rolled over to a Roth IRA and the distribution is not from a designated Roth account, that portion is includible in the taxpayer's gross income but generally is not subject to the 10-percent additional tax under section 72(t).

B. Definition of Eligible Rollover Distribution and Eligible Retirement Plan

These proposed regulations update the definition of

eligible rollover distribution

to include the portion of the distribution that constitutes the employee's investment in the contract and provide that, pursuant to section 402(c)(4)(C), an eligible rollover distribution does not include any distribution made on account of hardship. These proposed regulations also provide that a rollover distribution may be a 60-day rollover, a direct rollover described in section 401(a)(31), or the repayment of a distribution that is treated as a rollover pursuant to another statutory provision (such as the repayment of a qualified birth or

adoption distribution that is treated as a rollover pursuant to section 72(t)(2)(H)(v)(III)).

These proposed regulations also update the list of amounts of distributions and deemed distributions that are not eligible rollover distributions. Specifically, the proposed regulation adds that a deemed distribution with respect to a collectible pursuant to section 408(m) is not treated as an eligible rollover distribution.

These proposed regulations provide that, pursuant to section 402(c)(8)(B), an eligible retirement plan is: (1) An IRA; (2) a qualified plan (including an employee's trust described in section 401(a) that is exempt from taxation under section 501(a), an annuity plan under section 403(a) or an annuity contract under 403(b)); or (3) an eligible deferred compensation plan under section 457(b) maintained by an employer described in section 457(e)(1)(A) (such as a State or local government). Pursuant to section 402(c)(10), an eligible deferred compensation plan under section 457(b) is an eligible retirement plan only if it separately accounts for amounts rolled into the plan. Furthermore, an eligible rollover distribution from a designated Roth account under section 402A may be rolled over only to another designated Roth account or to a Roth IRA.

C. Special Rules Related to Eligible Rollover Distributions

1. Distributions That Include Basis

In accordance with section 402(c)(2), these proposed regulations provide that if an eligible rollover distribution includes an amount that is allocable to the employee's basis (that is, the employee's investment in the contract), then additional rules will apply if it is not rolled over to an IRA. Specifically, if the rollover is to a qualified plan or annuity contract described in section 403(b), then the rollover must be made through a direct trustee-to-trustee transfer. In addition, the portion of a distribution that is allocable to an employee's basis may not be rolled over to an eligible deferred compensation plan described in section 457(b).

These proposed regulations also provide that if an eligible rollover distribution includes an amount that is allocable to an employee's basis, and only a portion of that distribution is rolled over, then the portion that is rolled over is treated as first consisting of the portion of the distribution that is not allocable to the employee's basis.

2. Distributions That Include Property

These proposed regulations reflect the rules in section 402(c)(1)(C) and provide that, generally, if an eligible rollover distribution is made in the form of property, then that property may be rolled over. In accordance with section 402(c)(6)(A), if that property is sold after being distributed, then the proceeds of the sale may be rolled over (up to the fair market value of the property at the time of the sale), but only if the distribution otherwise satisfies the requirements to be an eligible rollover distribution. The Treasury Department and the IRS request comments on whether there are additional issues under section 402(c)(6) concerning the treatment of the proceeds of the sale of the property (including in situations in which the proceeds of the sale exceed the fair market value of the property at the time of the distribution) that should be addressed in future guidance.

3. Extensions of and Exceptions to the 60-Day Rollover Deadline

These proposed regulations provide for certain extensions of and exceptions to the 60-day deadline by which an eligible rollover distribution must be rolled over to an eligible retirement plan. Specifically, the regulations adopt the requirements of section 402(c)(3)(B), which provides that the Commissioner may waive the 60-day deadline if the failure to waive that requirement would be against equity or good conscience, including casualty, disaster, or other events beyond the reasonable control of the individual with respect to that requirement. In addition, the proposed regulations provide that the 60-day period does not include any period during which the amount transferred to the employee is a frozen deposit described in section 402(c)(7)(B), and does not end earlier than 10 days after that amount ceases to be a frozen deposit. The proposed regulations also clarify that in the case of a repayment of a distribution treated as a rollover (such as a qualified disaster distribution), the repayment timing requirements in the statutory provision giving rise to that treatment take precedence over the otherwise applicable 60-day period. Finally, these proposed regulations also move the rules for the section 402(c)(3)(C) exception to the 60-day deadline for a rollover of a QPLO amount from § 1.402(c)-3 to § 1.402(c)-2(g).

D. Distributions to Beneficiaries

1. General Rules

These proposed regulations provide that, generally, a distributee other than the employee or the employee's surviving spouse is not permitted to roll over a distribution from a qualified plan. Pursuant to section 402(c)(9), these proposed regulations provide that a surviving spouse may roll over an employee's interest in the plan to an IRA or a qualified plan. In the case of a spousal rollover to a qualified plan, the amount rolled over is treated as the spouse's own interest in the receiving plan and not as the decedent's interest in the distributing plan. Accordingly, with respect to the amount rolled over to a qualified plan, section 401(a)(9) is satisfied under the rules of section 401(a)(9)(A) (applicable to distributions to employees) and not section 401(a)(9)(B) (applicable to distributions to beneficiaries following the employee's death).

These proposed regulations provide that a designated beneficiary who is not a spouse may elect, under section 402(c)(11), to have any portion of a distribution that fits within the definition of an eligible rollover distribution transferred via a direct trustee-to-trustee transfer to an IRA established for the purpose of receiving that distribution. If that transfer is made pursuant to section 402(c)(11), the distribution is treated as an eligible rollover distribution; the IRA is treated as an inherited account or annuity (as defined in section 408(d)(3)(C), so that distributions from the inherited IRA are not eligible to be rolled over); and the IRA is subject to section 401(a)(9)(B) (other than section 401(a)(9)(B)(iv)).

In determining whether a distribution to a beneficiary is an eligible rollover distribution, the portion of the distribution that constitutes a required minimum distribution under section 401(a)(9) must be determined. The proposed regulations set forth rules for making this determination that are similar to the rules adopted in Notice 2007-7, Q&A-17 and Q&A-19, but are expanded to apply to both spouse and non-spouse beneficiaries.

These proposed regulations provide that, generally, if an employee dies before the required beginning date, then the amount of a distribution to a beneficiary that is treated as a required minimum distribution under section 401(a)(9) (and thus is not an eligible rollover distribution) is determined based on whether the 5-year rule, 10-year rule, or life expectancy rule (or, in the case of a defined benefit plan, the annuity payment rule) applies. Regardless of which rule applies, no portion of a distribution made in the year of the employee's death is treated as a required minimum distribution under section 401(a)(9).

If the 5-year rule applies, then no amount distributed before the fifth calendar year after the calendar year of the employee's death is treated as a required minimum distribution. In the fifth calendar year after the calendar year of the employee's death, the entire amount distributed in that year is treated as a required minimum distribution (and thus is not an eligible rollover distribution). Similarly, if the 10-year rule applies, then, generally, no amount distributed before the tenth calendar year after the calendar year of the employee's death is treated as a required minimum distribution. In the tenth calendar year after the calendar year of the employee's death, the entire amount distributed in that year is treated as a required minimum distribution (and thus is not an eligible rollover distribution).

If the employee dies on or after the required beginning date or if the life expectancy rule applies (or, in the case of a defined benefit plan, the annuity payment rule applies), then, in the first distribution calendar year for the beneficiary and for each subsequent year, the amount treated as a required minimum distribution (and thus is not an eligible rollover distribution) is determined in accordance with the rules described in Sections I.F and I.G of this Explanation of Provisions. In this situation, if the employee dies before receiving the distribution, the amount that would have otherwise been a required minimum distribution for the employee in the calendar year of the employee's death is treated as a required minimum distribution with respect to any distribution to a beneficiary of the employee. A similar rule applies if the employee's beneficiary dies before receiving the distribution for the calendar year of the beneficiary's death, so that the amount that would have otherwise been a required minimum distribution for the employee's beneficiary in the calendar year of that beneficiary's death is treated as a required minimum distribution with respect to any distribution to a beneficiary of the employee's beneficiary.

These proposed regulations provide an exception for a beneficiary to whom the 5-year rule or 10-year rule applies if that beneficiary makes the election described in Section IV of this Explanation of Provisions to have the life expectancy rule (or annuity payment rule) apply to amounts in the IRA that receives the distribution (rather than the 5-year rule or 10-year rule that applied under the distributing plan). This exception ensures that if a beneficiary makes that election, then the portion of a distribution from the plan that is a required minimum distribution is determined in a consistent manner with respect to all amounts to which the life expectancy rule or annuity payment rule apply.

2. Special Rule for Certain Distributions to Surviving Spouses

These proposed regulations also provide for a special rule that limits the ability of a surviving spouse to use the 5-year rule or the 10-year rule to defer distributions beyond the otherwise required beginning date and then, after that date, commence annual distributions. This rule, which applies in limited circumstances, is used to determine, with respect to a distribution to the employee's surviving spouse to whom the 5-year rule or 10-year rule applies, the portion of that distribution that is treated as a required minimum distribution under section 401(a)(9) (and thus is not an eligible rollover distribution). This special rule, which treats a portion of a distribution made before the last year of the 5-year or 10-year period (whichever applies to the spouse) as a required minimum distribution, applies if: (1) The distribution is made in or after the calendar year the surviving spouse attains age 72; and (2) the surviving spouse rolls over some or all of the distribution to an eligible retirement plan under which the surviving spouse is not treated as the beneficiary of the employee. For example, this special rule applies when an employee dies at age 67, the spouse (who is age 68) elects the 10-year rule, the spouse takes a distribution in the 6th calendar year following the employee's death (the calendar year in which the spouse is age 74 and the employee would have been age 73) and the surviving spouse is rolling over a part of that distribution to the spouse's own IRA (but the rule would not apply if the distribution occurred in the calendar year that the surviving spouse attained age 71 or an earlier year).

Under this special rule, the portion of the distribution that is treated as a required minimum distribution is the cumulative total, over a span of years, of the hypothetical required minimum distribution for each year had the life expectancy rule applied (or, in the case of a defined benefit plan, had the annuity payment rule applied), reduced by any amounts actually distributed to the surviving spouse during that span of years. The span of years begins with the first applicable year (defined as the later of the calendar year in which the surviving spouse reaches age 72 and the calendar year in which the employee would have reached age 72) and ends in the year of distribution.

In calculating the hypothetical required minimum distributions from a defined contribution plan for a calendar year under this special rule, the proposed regulations provide that an adjusted account balance is used. The adjusted account balance for a calendar year is determined by reducing the account balance that normally would be used to determine the required minimum distribution for that year by the excess (if any) of: (1) The sum of the hypothetical required minimum distributions beginning with the first applicable year and ending with the calendar year preceding the calendar year of the determination, over (2) the distributions actually made to the surviving spouse during those calendar years.

III. Section 403(b) Regulations

A. Section 1.403(b)-6(e)—Minimum Required Distributions for Eligible Plans

These proposed regulations amend § 1.403(b)-6(e) to conform that paragraph (which sets forth the required minimum distribution rules for a section 403(b) contract) to the changes made to section 401(a)(9) under the SECURE Act. For example, pursuant to the change in the required beginning date under section 114 of the SECURE Act, these proposed regulations change the reference to age 70

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in the current regulations to the required beginning date as determined under § 1.401(a)(9)-2(b).

These proposed regulations also amend § 1.403(b)-6(e) to provide that the exception from the applicability of section 401(a)(9)(H) for qualified annuities provided in section 401(b)(4) of the SECURE Act applies in the case of a section 403(b)(9) retirement income account even if a commercial annuity (as defined in section 3405(e)(6) of the Code) is not used, provided that all of the other requirements for the qualified annuity exception are satisfied.

B. Request for Comments Regarding Required Minimum Distributions From Section 403(B) Plans

Under § 1.403(b)-6(e), the required minimum distribution rules applicable to IRAs apply to section 403(b) contracts, and, in general, the required minimum distribution rules for section 403(b) plans are applied in accordance with § 1.408-8. Thus, for example, under § 1.403(b)-6(e)(7), a required minimum distribution owed with respect to one section 403(b) contract of an individual is permitted to be distributed from another section 403(b)

contract of the same individual. Although IRA trustees are required, on Form 5498,

IRA Contribution Information,

to report to the IRS and provide to IRA owners certain information regarding required minimum distributions (such as whether a required minimum distribution is due for a year and the account balance on which the required minimum distribution will be based), Notice 2002-27, 2002-18 I.R.B. 814, provides that no reporting is required with respect to required minimum distributions from section 403(b) contracts. Accordingly, a section 403(b) plan is neither required to automatically make a required minimum distribution for a participant nor required to inform the IRS or the participant that a required minimum distribution is due or the account balance on which the distribution is based.

The required minimum distribution rules applicable to section 403(b) contracts were developed before 2007 when the section 403(b) regulations were issued and made section 403(b) plans more like employer-sponsored qualified plans rather than IRAs, including requiring employers to adopt a written plan document that describes employer responsibilities under the plan. The existing regulations also provide that section 403(b) plans determine the required beginning date in accordance with the rules applicable to qualified plans rather than the rules applicable to IRAs, and that the qualified plan rules related to the purchase of a QLAC apply to section 403(b) plans rather than the corresponding IRA rules. These proposed regulations further treat a section 403(b) plan like a qualified plan in that the distributions or deemed distributions not taken into account in determining the required minimum distribution for a calendar year are the distributions or deemed distributions described in the qualified plan rules rather than the IRA rules.

The Treasury Department and the IRS are considering additional changes to the required minimum distribution rules for section 403(b) plans so that they more closely follow the required minimum distribution rules for qualified plans. For example, under this approach, each section 403(b) plan (like each qualified plan) would be required to make required minimum distributions calculated with respect to that plan (rather than rely on the employee to request distributions from another plan in an amount that satisfies the requirement). These changes would treat similar employer-sponsored plans consistently and may facilitate compliance with the required minimum distribution rules.

The Treasury Department and the IRS request comments on these possible changes to the required minimum distribution rules for section 403(b) plans, including: (1) Any administrative concerns; (2) any differences between the structure or administration of section 403(b) plans and of qualified plans that should be taken into account in applying the required minimum distribution rules for qualified plans to section 403(b) plans; and (3) any transition rules that would ease the implementation of these possible changes.

IV. Section 1.408-8—Distribution Requirements for IRAs

These proposed regulations amend § 1.408-8 (which sets forth the required minimum distribution rules for IRAs) to implement the changes made to section 401(a)(9) under the SECURE Act. For example, pursuant to the change in the required beginning date under section 114 of the SECURE Act, these proposed regulations change the references to age 70

1/2

in the current regulations to the required beginning date as determined under § 1.401(a)(9)-2(b)(3). This change reflects that the IRA owner's required beginning date is April 1 of the calendar year after the calendar year in which the individual attains age 72 (or 70

1/2

in the case of an IRA owner born before July 1, 1949). These proposed regulations also provide that the owner of a Roth IRA is not required to begin distributions during the owner's lifetime (consistent with existing § 1.408A-6, Q&A-14 and 15).

These proposed regulations incorporate the rules in Notice 2007-7, Q&A-17 and 19 (relating to the carryover of the method of determining required minimum distributions from a distributing plan to a receiving IRA when a beneficiary is making a transfer described in section 402(c)(11)). In addition, these proposed regulations extend those rules to provide comparable treatment to a surviving spouse in light of the extension of the 5-year period to a 10-year period pursuant to section 401(a)(9)(H). Specifically, these proposed regulations provide that, if an employee dies before the employee's required beginning date after designating the employee's spouse as a beneficiary, and the surviving spouse rolls over a distribution from the qualified plan to an IRA in the name of the decedent, then any distribution method that was elected under the qualified plan also will apply to the IRA that receives the rollover. The same rule applies in the case of an IRA owner who dies before the required beginning date (so that, if the surviving spouse rolls over a distribution to an IRA in the name of the decedent, then the distribution method that was elected under the distributing IRA will also apply to the IRA that receives the rollover).

These proposed regulations also provide an exception to the rules in the preceding paragraph providing for comparable treatment between surviving spouse beneficiaries and other designated beneficiaries. Under this exception, a surviving spouse, to whom the 5-year rule or 10-year rule applies and who rolls over a distribution from a plan (or an IRA) to an IRA in the decedent's name, may elect to have distributions from the IRA that receives the rollover be subject to the life expectancy rule (rather than the 5-year rule or 10-year rule). The deadline for making this election is the deadline that would have applied for an election between the 5-year rule (or 10-year rule) and the life expectancy rule (or annuity payment rule) had the distributing plan provided for an election between those rules by the beneficiary. As described in Section II.D. of this Explanation of Provisions, if this election is made, then the portion of a distribution that is treated as the required minimum distribution also will be calculated using the life expectancy rule (or annuity payment rule).

The proposed rules described in the preceding two paragraphs also are proposed to apply to a non-spouse beneficiary who is making a transfer described in section 402(c)(11) (incorporating the rules of Notice 2007-7, Q&A-17 and 19). Thus, for example, if an eligible designated beneficiary elects the 10-year rule and, in the seventh calendar year after the calendar year of the employee's death, that beneficiary elects for a distribution to be made in the form of a direct transfer of the employee's interest under the plan to an IRA in the name of the decedent, then the amount transferred nevertheless must be distributed by the end of the tenth calendar year following the calendar year of the employee's death. However, if the distribution is made by the end of the calendar year following the year the employee dies, then the beneficiary would be permitted to make an election to have the life expectancy rule apply under the IRA.

These new rules relating to the distribution method of the receiving IRA do not apply to a surviving spouse when that spouse is rolling over a distribution to the spouse's own account in a qualified plan or to the spouse's own IRA (because distributions would then

be made in accordance with section 401(a)(9)(A) instead of section 401(a)(9)(B)). In that case, these proposed regulations provide that the amount of the distribution treated as a required minimum distribution, and thus not eligible to be rolled over, is determined in accordance with § 1.402(c)-2(j) (including the new rule under which in certain circumstances a spouse who elects the 10-year rule is required to treat a portion of any distribution as a required minimum distribution under the life expectancy rule).

To coordinate with these rules, the proposed regulations provide a deadline for the election under which a surviving spouse may elect to treat a decedent's IRA as the spouse's own. Specifically, a surviving spouse must make that election by the later of (1) the end of the calendar year in which the surviving spouse reaches age 72, and (2) the end of the calendar year following the calendar year of the IRA owner's death. This new deadline should not disrupt the normal application of the election, because the primary purpose for not making an immediate election is for a surviving spouse who has not yet reached age 59

1/2

to take advantage of the section 72(t)(2)(A)(ii) exception to the 10% additional income tax on early withdrawals made by a beneficiary. If the surviving spouse were to miss the deadline provided for in these proposed regulations, that surviving spouse still would be permitted to roll over distributions to the spouse's own IRA but would be subject to the special rule on the catch-up of hypothetical required minimum distributions described in Section II.D of this Explanation of Provisions.

These proposed regulations also provide that any beneficiary (including a non-individual beneficiary) may aggregate IRAs that are inherited from the same decedent when determining the amount that is a required minimum distribution. Thus, for example, if a trust is the beneficiary of two IRAs that are inherited from the same decedent, the trustee may aggregate those IRAs when determining the amount that is a required minimum distribution and take that aggregate amount from either one of the IRAs.

V. Section 1.457-6(d)—Minimum Required Distributions for Eligible Plans

These proposed regulations delete a sentence in § 1.457-6(d) that describes section 401(a)(9), because the sentence refers to age 70

1/2

, and is no longer accurate following the amendment to the definition of required beginning date under section 114 of the SECURE Act.

VI. Section 54.4974-1—Excise Tax on Accumulations in Qualified Retirement Plans

These proposed regulations provide amendments to § 54.4974-2 (which is renumbered as § 54.4974-1) to conform the rules to the changes made to section 401(a)(9) under the SECURE Act. For example, the rules for determining the required minimum distribution when the 5-year rule applies are expanded to include rules for determining the required minimum distribution when the 10-year rule applies.

These proposed regulations also provide two situations in which an automatic waiver of the excise tax applies, one of which is based on the automatic waiver in the existing regulation. The first situation in which the automatic waiver applies is when: (1) The employee (or in the case of an IRA, the IRA owner) died before the required beginning date; (2) the payee is an eligible designated beneficiary who did not make an affirmative election to use the life expectancy rule but otherwise is subject to the life expectancy rule pursuant to a plan provision or the regulatory default provision that applies in the absence of a plan provision; (3) the payee did not satisfy the required minimum distribution requirements; and (4) the payee elects for the employee's or IRA owner's entire interest to be distributed under the 10-year rule. In that case, once the payee elects the 10-year rule, the payee's required minimum distribution in the tenth calendar year following the calendar year of the employee's or IRA owner's death is the entire account balance.

The second situation in which an automatic waiver applies is in the case of an individual who had a minimum distribution requirement in a calendar year and died in that calendar year before satisfying that minimum distribution requirement. In this situation, the individual's beneficiary must satisfy the minimum distribution requirement by the end of that calendar year. However, if that beneficiary fails to satisfy the minimum distribution requirement in that calendar year, then the excise tax for the failure to take the distribution is automatically waived provided that the beneficiary satisfies that requirement no later than that beneficiary's tax filing deadline (including extensions thereof).

Applicability Dates

Amended §§ 1.401(a)(9)-1 through 1.401(a)(9)-9, 1.403(b)-6(e), and 1.408-8 are proposed to apply for purposes of determining required minimum distributions for calendar years beginning on or after January 1, 2022. Amended § 1.402(c)-2 is proposed to apply for distributions on or after January 1, 2022. Amended § 54.4974-1 is proposed to apply for taxable years beginning on or after January 1, 2022. For the 2021 distribution calendar year, taxpayers must apply the existing regulations, but taking into account a reasonable, good faith interpretation of the amendments made by sections 114 and 401 of the SECURE Act. Compliance with these proposed regulations will satisfy that requirement.

Special Analyses

These regulations are not subject to review under section 6(b) of Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) between the Treasury Department and the Office of Management and Budget regarding review of tax regulations.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that the regulations will not have a significant economic impact on a substantial number of small entities. These proposed regulations do not impose new compliance burdens and are not expected to result in economically meaningful changes in behavior relative to the existing regulations. The election described in § 1.401(a)(9)-3(b)(4)(iii) and (c)(5)(iii) is expected to be an unusual occurrence for small entities because few individuals with benefits in retirement plans maintained by small entities are likely to make these elections. In the case of § 1.401(a)(9)-4(e)(7), when determining whether a designated beneficiary is disabled or chronically ill, the reporting burden is primarily on the designated beneficiary rather than the plan sponsor. In the case of § 1.401(a)(9)-4(h), when determining required minimum distributions in cases in which a plan participant wishes to designate a trust as beneficiary of the participant's benefit, the reporting burden is primarily on the plan participant, or the trustee of the trust named as beneficiary, to supply information rather than on the entity maintaining the retirement plan. In addition, the number of participants per plan to whom the burden applies is likely to be small. In § 1.403(b)-3(e)(6)(ii), the recordkeeping burden with respect to section 403(b) contracts under which the pre-1987 account balance must be maintained only applies to issuers and custodians of those contracts, which generally are not

small entities. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act is not required. Treasury and IRS invite comments on the impact of these regulations on small entities. Pursuant to section 7805(f) of the Code, these proposed regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

Paperwork Reduction Act

The collection of information related to these proposed regulations under sections 401(a)(9) and 403(b) has been reviewed in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) and approved by the Office of Management and Budget under control number 1545-0047.

Comments concerning the collection of information and the accuracy of estimated average annual burden and suggestions for reducing this burden should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the burden associated with this collection of information must be received by April 25, 2022.

Comments

Before the proposed amendments are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the

ADDRESSES

section. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. Any electronic comments submitted, and to the extent practicable any paper comments submitted, will be made available at

www.regulations.gov

or upon request

Statement of Availability of IRS Documents

IRS Revenue Procedures, Revenue Rulings notices, and other guidance cited in this document are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at

http://www.irs.gov.

Drafting Information

The principal authors of these proposed regulations are Brandon M. Ford and Laura B. Warshawsky, of the Office of the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes). However, other personnel from the Treasury Department and the IRS participated in the development of the proposed regulations.

List of Subjects

26 CFR Part 1

Income taxes, Reporting and recordkeeping requirements.

26 CFR Part 54

Excise taxes, Pensions, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

Accordingly, 26 CFR parts 1 and 54 are proposed to be amended as follows:

PART 1—INCOME TAX

Paragraph 1.

The authority citation for part 1 continues to read in part as follows:

Authority:

26 U.S.C. 7805, unless otherwise noted.

Par. 2.

Revise sections 1.401(a)(9)-0 through 1.401(a)(9)-8 to read as follows:

§ 1.401(a)(9)-0

Required minimum distributions; table of contents.

This table of contents lists the regulations relating to required minimum distributions under section 401(a)(9) of the Internal Revenue Code as follows:

§ 1.401(a)(9)-1 Minimum distribution requirement in general.

(a) Plans subject to minimum distribution requirement.

(1) In general.

(2) Participant in multiple plans.

(3) Governmental plans.

(b) Statutory effective date.

(1) In general.

(2) Applicability date for section 401(a)(9)(H).

(3) Examples.

(c) Required and optional plan provisions.

(1) Required provisions.

(2) Optional provisions.

(d) Regulatory effective date.

§ 1.401(a)(9)-2 Distributions commencing during an employee's lifetime.

(a) Distributions commencing during an employee's lifetime.

(1) In general.

(2) Amount required to be distributed for a calendar year.

(3) Distributions commencing before required beginning date.

(4) Distributions after death.

(b) Determination of required beginning date.

(1) General rule.

(2) Employees born before July 1, 1949.

(3) Required beginning date for 5-percent owner.

(4) Uniform required beginning date.

§ 1.401(a)(9)-3 Death before required beginning date.

(a) In general.

(b) Distribution requirements in the case of a defined benefit plan.

(1) In general.

(2) 5-year rule.

(3) Annuity payments.

(4) Determination of which rule applies.

(c) Distributions in the case of a defined contribution plan.

(1) In general.

(2) 5-year rule.

(3) 10-year rule.

(4) Life expectancy payments.

(5) Determination of which rule applies.

(d) Permitted delay for surviving spouse beneficiaries.

(e) Distributions that commence after surviving spouse's death.

(1) In general.

(2) Remarriage of surviving spouse.

(3) When distributions are treated as having begun to surviving spouse.

§ 1.401(a)(9)-4 Determination of the designated beneficiary.

(a) Beneficiary designated under the plan.

(1) In general.

(2) Entitlement to employee's interest in the plan.

(3) Specificity of beneficiary designation.

(4) Affirmative and default elections of designated beneficiary.

(b) Designated beneficiary must be an individual.

(c) Rules for determining beneficiaries.

(1) Time period for determining the beneficiary.

(2) Circumstances under which a beneficiary is disregarded as a beneficiary of the employee.

(3) Examples.

(d) Application of beneficiary designation rules to surviving spouse.

(e) Eligible designated beneficiaries.

(1) In general.

(2) Multiple designated beneficiaries.

(3) Determination of age of majority.

(4) Disabled individual.

(5) Chronically ill individual.

(6) Individual not more than 10 years younger than the employee.

(7) Documentation requirements for disabled or chronically ill individuals.

(8) Applicability of definition of eligible designated beneficiary to beneficiary of surviving spouse.

(9) Examples.

(f) Special rules for trusts.

(1) Look-through of trust to determine designated beneficiaries.

(2) Trust requirements.

(3) Trust beneficiaries treated as beneficiaries of the employee.

(4) Multiple trust arrangements.

(5) Identifiability of trust beneficiaries.

(6) Examples.

(g) Applicable multi-beneficiary trusts.

(1) General definition of an applicable multi-beneficiary trust.

(2) Type I applicable multi-beneficiary trust.

(3) Type II applicable multi-beneficiary trust.

(h) Documentation requirements for trusts.

(1) General rule.

(2) Required minimum distributions while employee is still alive.

(3) Required minimum distributions after death.

(4) Relief for discrepancy between trust instrument and employee certifications or earlier trust instruments.

§ 1.401(a)(9)-5 Required minimum distributions from defined contribution plans.

(a) General rules.

(1) In general.

(2) Distribution calendar year.

(3) Time for distributions.

(4) Minimum distribution incidental benefit requirement.

(5) Annuity contracts.

(6) Impact of additional distributions in prior years.

(b) Determination of account balance.

(1) General rule.

(2) Adjustment for subsequent allocations.

(3) Adjustment for subsequent distributions.

(4) Exclusion for QLAC contract.

(5) Treatment of rollovers.

(c) Determination of applicable denominator during employee's lifetime.

(1) General rule.

(2) Spouse is sole beneficiary.

(d) Applicable denominator after employee's death.

(1) Death on or after the employee's required beginning date.

(2) Death before an employee's required beginning date.

(3) Remaining life expectancy.

(e) Distribution of employee's entire interest required.

(1) In general.

(2) 10-year limit for designated beneficiary who is not an eligible designated beneficiary.

(3) 10-year limit following death of eligible designated beneficiary.

(4) 10-year limit after minor child of the employee reaches age of majority.

(5) Life expectancy limit for older eligible designated beneficiaries.

(f) Rules for multiple designated beneficiaries.

(1) Determination of applicable denominator.

(2) Determination of when entire interest is required to be distributed.

(g) Treatment of nonvested amounts.

(h) Distributions taken into account.

§ 1.401(a)(9)-6 Required minimum distributions for defined benefit plans and annuity contracts.

(a) Defined benefit plans.

(1) In general.

(2) Definition of life annuity.

(3) Annuity commencement.

(4) Single-sum distributions.

(5) Death benefits.

(6) Separate treatment of separate identifiable components.

(7) Additional guidance.

(b) Application of incidental benefit requirement.

(1) Life annuity for employee.

(2) Joint and survivor annuity.

(3) Period certain and annuity features.

(4) Deemed satisfaction of incidental benefit rule.

(c) Period certain annuity.

(1) Distributions commencing during the employee's life.

(2) Distributions commencing after the employee's death.

(d) Use of annuity contract.

(e) Treatment of additional accruals.

(1) General rule.

(2) Administrative delay.

(f) Treatment of nonvested benefits.

(g) Requirement for actuarial increase.

(1) General rule.

(2) Nonapplication to 5-percent owners.

(3) Nonapplication to governmental and church plans.

(h) Amount of actuarial increase.

(1) In general.

(2) Actuarial equivalence basis.

(3) Coordination with section 411 actuarial increase.

(i) [Reserved].

(j) Distributions restricted pursuant to section 436.

(1) General rule.

(2) Payments restricted under section 436(d)(3).

(3) Payments restricted under section 436(d)(1) or (2).

(k) Treatment of early commencement.

(1) General rule.

(2) Joint and survivor annuity, nonspouse beneficiary.

(3) Limitation on period certain.

(l) Early commencement for surviving spouse.

(m) Determination of entire interest under annuity contract.

(1) General rule.

(2) Entire interest.

(3) Exclusions.

(4) Examples.

(n) Change in annuity payment period.

(1) In general.

(2) Reannuitization.

(3) Conditions.

(4) Examples.

(o) Increase in annuity payments.

(1) General rules.

(2) Eligible cost of living index.

(3) Additional permitted increases for certain annuity contracts purchased from insurance companies.

(4) Additional permitted increases for all annuity contracts purchased from insurance companies.

(5) Additional permitted increases for annuity payments from a qualified trust.

(6) Definitions.

(7) Examples.

(p) Payments to children.

(1) In general.

(2) Age of majority.

(q) Qualifying longevity annuity contract.

(1) Definition of qualifying longevity annuity contract.

(2) Limitations on premiums.

(3) Payments after death of the employee.

(4) Rules of application.

§ 1.401(a)(9)-7 Rollovers and transfers.

(a) Treatment of rollover from distributing plan.

(b) Treatment of rollover by receiving plan.

(c) Treatment of transfer under transferor plan.

(1) Generally not treated as distribution.

(2) Account balance decreased after transfer.

(d) Treatment of transfer under transferee plan.

(e) Treatment of spinoff or merger.

§ 1.401(a)(9)-8 Special rules.

(a) Use of separate accounts

(1) Separate application of section 401(a)(9) for beneficiaries.

(2) Separate accounting requirements.

(b) Application of consent requirements.

(c) Definition of spouse.

(d) Treatment of QDROs.

(1) Continued treatment of spouse.

(2) Separate accounts.

(3) Other situations.

(e) Application of section 401(a)(9) pending determination of whether a domestic relations order is a QDRO is being made.

(f) Application of section 401(a)(9) when insurer is in state delinquency proceedings.

(g) In-service distributions required to satisfy section 401(a)(9).

(h) TEFRA section 242(b) elections.

(1) In general.

(2) Application of section 242(b) election after transfer.

(3) Application of section 242(b) election after rollover.

(4) Revocation of section 242(b) election.

§ 1.401(a)(9)-9 Life expectancy and distribution period tables.

(a) In general.

(b) Single Life Table.

(c) Uniform Life Table.

(d) Joint and Last Survivor Table.

(e) Mortality rates.

(f) Applicability dates.

(1) In general.

(2) Application to life expectancies that may not be recalculated.

§ 1.401(a)(9)-1

Minimum distribution requirement in general.

(a)

Plans subject to minimum distribution requirement

—(1)

In general.

Under section 401(a)(9), all stock bonus, pension, and profit-sharing plans qualified under section 401(a) and annuity contracts described in section 403(a) are subject to required minimum distribution rules. See this section and §§ 1.401(a)(9)-2 through 1.401(a)(9)-9 for the distribution rules applicable to these plans. Under section 403(b)(10), annuity contracts and custodial accounts described in section 403(b) are subject to required minimum distribution rules. See § 1.403(b)-6(e) for the distribution rules applicable to these annuity contracts and custodial accounts. Under section 408(a)(6) and 408(b)(3), individual retirement accounts and individual retirements annuities (collectively, IRAs) are subject to required minimum distribution rules. See § 1.408-8 for the minimum distribution rules applicable to IRAs and § 1.408A-6 for the minimum distribution rules applicable to Roth IRAs under section 408A. Under section

457(d)(2), eligible deferred compensation plans described in section 457(b) for employees of tax-exempt organizations or employees of State and local governments are subject to required minimum distribution rules. See § 1.457-6(d) for the minimum distribution rules applicable to those eligible deferred compensation plans.

(2)

Participant in multiple plans.

If an employee is a participant in more than one plan, the plans in which the employee participates are not permitted to be aggregated for purposes of testing whether the distribution requirements of section 401(a)(9) are met. Thus, the distribution of the benefit of the employee under each plan must separately meet the requirements of section 401(a)(9). For this purpose, a plan described in section 414(k) is treated as two separate plans, a defined contribution plan to the extent benefits are based on an individual account and a defined benefit plan with respect to the remaining benefits.

(3)

Governmental plans.

A governmental plan (within the meaning of section 414(d)), or an eligible governmental plan described in § 1.457-2(f), is treated as having complied with section 401(a)(9) if the plan complies with a reasonable, good faith interpretation of section 401(a)(9). Thus, the terms of a governmental plan that reflect a reasonable, good faith interpretation of section 401(a)(9) do not have to provide that distributions will be made in accordance with this section and §§ 1.401(a)(9)-2 through 1.401(a)(9)-9. Similarly, a governmental plan may apply the rules of section 401(a)(9)(F) using the rules of 26 CFR 1.401(a)(9)-6, Q&A-15 (revised as of April 1, 2021).

(b)

Statutory effective date

—(1)

In general.

The distribution rules of section 401(a)(9) generally apply to all account balances and benefits in existence on or after January 1, 1985.

(2)

Applicability date for section 401(a)(9)(H)

—(i)

General effective date.

Except as provided in this paragraph (b), section 401(a)(9)(H) applies with respect to employees who die on or after January 1, 2020. However, in the case of a governmental plan (as defined in section 414(d)), section 401(a)(9)(H) applies with respect to employees who die on or after January 1, 2022.

(ii)

Delayed applicability date for collectively bargained plans

—(A)

General rule.

In the case of a plan maintained pursuant to one or more collective bargaining agreements between employee representatives and one or more employers ratified before December 20, 2019 (the date of enactment of the Further Consolidated Appropriations Act, Pub. L. 116-94, 133 Stat. 2534 (2019)), section 401(a)(9)(H) generally applies with respect to employees who die on or after January 1, 2022.

(B)

Earlier application if agreements terminate.

Notwithstanding paragraph (b)(2)(ii)(A) of this section, section 401(a)(9)(H) applies to a plan maintained pursuant to one or more collective bargaining agreements with respect to employees who die in 2020 or 2021 if—

(

1

) The year in which the employee dies begins after the date on which the last of the collective bargaining agreements described in paragraph (b)(2)(ii)(A) of this section terminates (determined without regard to any extension thereof to which the parties agreed on or after December 20, 2019), and

(

2

) Section 401(a)(9)(H) would apply with respect to the employee under the rules of paragraph (b)(2)(i) of this section.

(C)

Rules of application.

For purposes of this paragraph (b)(2)(ii)—

(

1

) A plan is treated as maintained pursuant to one or more collective bargaining agreements only if the plan constitutes a collectively bargained plan under the rules of § 1.436-1(a)(5)(ii)(B), and

(

2

) Any plan amendment made pursuant to a collective bargaining agreement that amends the plan solely to conform to the requirements of section 401(a)(9)(H) is not treated as a termination of the collective bargaining agreement.

(iii)

Applicability upon death of designated beneficiary

—(A)

In general.

Except as otherwise provided in this paragraph (b)(2)(iii), if an employee who died before the effective date described in paragraph (b)(2)(i) or (ii) of this section (whichever applies to the plan) has only one designated beneficiary and that beneficiary dies on or after that effective date, then, upon the death of the designated beneficiary, section 401(a)(9)(H) applies with respect to any beneficiary of the employee's designated beneficiary. Section 401(b)(5) of Division O of the Further Consolidated Appropriations Act (known as the SECURE Act), provides that, if an employee dies before the effective date, then a designated beneficiary of an employee is treated as an eligible designated beneficiary. Accordingly, once the rules of section 401(a)(9)(H) apply with respect to the employee's designated beneficiary, the rules of section 401(a)(9)(H)(iii) (requiring full distribution of the employee's interest within 10 years after the death of an eligible designated beneficiary) apply upon the designated beneficiary's death.

(B)

Employee with multiple designated beneficiaries.

If an employee described in paragraph (b)(2)(iii)(A) of this section has more than one designated beneficiary, then whether section 401(a)(9)(H) applies is determined based on the date of death of the oldest of the employee's designated beneficiaries. Thus, section 401(a)(9)(H) will apply upon the death of the oldest of the employee's designated beneficiaries if that designated beneficiary is still alive on or after the effective date of section 401(a)(9)(H) for the plan as determined under the rules of paragraph (b)(2)(i) or (ii) of this section.

(C)

Surviving spouse of the employee dies before employee's required beginning date.

If an employee described in paragraph (b)(2)(iii)(A) of this section dies before the employee's required beginning date and the employee's surviving spouse is waiting to begin distributions until the year for which the employee would have been required to begin distributions pursuant to section 401(a)(9)(B)(iv), then, in applying the rules of this paragraph (b)(2)(iii), the surviving spouse is treated as the employee. Thus, for example, if an employee with a required beginning date of April 1, 2025, names the employee's surviving spouse as the sole beneficiary of the employee's interest in the plan, both the employee and the employee's surviving spouse die before the effective date of section 401(a)(9)(H) for the plan, and that spouse's designated beneficiary dies on or after that effective date, then section 401(a)(9)(H) applies with respect to the surviving spouse's designated beneficiary upon the death of that designated beneficiary.

(iv)

Qualified annuity exception

—(A)

In general.

Section 401(a)(9)(H) does not apply to a commercial annuity (as defined in section 3405(e)(6))—

(

1

) That is a binding annuity contract in effect as of December 20, 2019;

(

2

) Under which payments satisfy the requirements of 26 CFR 1.401(a)(9)-1 through 1.401(a)(9)-9 (revised as of April 1, 2020); and

(

3

) That satisfies the irrevocability requirements of paragraph (b)(2)(iv)(B) of this section.

(B)

Irrevocability requirements applicable to annuity contract.

A contract satisfies the requirements of this paragraph (b)(2)(iv)(B) if the employee has made an irrevocable election before December 20, 2019, as to the method and amount of annuity payments to the employee and any designated beneficiary.

(3)

Examples.

The following examples illustrate the effective date requirements of this paragraph (b).

(i)

Example 1.

Employer M maintains a defined contribution plan, Plan X. Employee A died in 2017, at the age of 68, and designated A's 40-year-old non-disabled, non-chronically ill son, B, as the sole beneficiary of A's interest in Plan X. Pursuant to a plan provision in Plan X, B elected to take distributions over B's life expectancy under section 401(a)(9)(B)(iii). B dies in 2024, after the effective date of section 401(a)(9)(H). Because section 401(b)(5) of the SECURE Act treats B as an eligible designated beneficiary, the rules of section 401(a)(9)(H)(iii) apply to B's beneficiaries. Therefore, A's remaining interest in Plan X must be distributed by the end of 2034 (within 10 years of B's death).

(ii)

Example 2.

The facts are the same as in

Example 1

in paragraph (b)(3)(i) of this section except that B died in 2019. Because A's designated beneficiary died before the effective date of section 401 of the SECURE Act, the rules of section 401(a)(9)(H) do not apply to B's beneficiaries.

(iii)

Example 3.

The facts are the same as in

Example 1

in paragraph (b)(3)(i) of this section except that, pursuant to a provision in Plan X, B elected the 5-year rule under section 401(a)(9)(B)(ii). Accordingly, A's entire interest is required to be distributed by the end of 2022. Because A died before January 1, 2020, section 401(a)(9)(H) does not apply with respect to B. Therefore, section 401(a)(9)(H)(i)(I) does not extend B's election to a 10-year period. Although B's election requires A's entire interest to be distributed by the end of 2022, the enactment of section 401(a)(9)(I)(iii)(II) (permitting disregard of 2020 when the 5-year period applies) permits distribution of A's entire interest in the plan to be delayed until the end of 2023.

(iv)

Example 4.

The facts are the same as in

Example 1

in paragraph (b)(3)(i) of this section except that A designates a see-through trust that satisfies the requirements of § 1.401(a)(9)-4(f)(2) as the sole beneficiary of A's interest in Plan X. All of the trust beneficiaries are alive as of January 1, 2020. The oldest of the trust beneficiaries, C, dies in 2022. Because section 401(b)(5) of the SECURE Act treats C as an eligible designated beneficiary, the rules of section 401(a)(9)(H)(iii) apply to the other trust beneficiaries. Thus, if the death of the oldest beneficiary is not disregarded under the rules of § 1.401(a)(9)-5(f)(2)(ii), A's remaining interest in Plan X must be distributed by the end of 2032 (within 10 years of C's death).

(v)

Example 5.

The facts are the same as in

Example 4

in paragraph (b)(3)(iv) of this section except that C dies in 2019. Because the oldest designated beneficiary died before January 1, 2020, the rules of section 401(a)(9)(H) do not apply to any of the other trust beneficiaries.

(vi)

Example 6.

The facts are the same as in

Example 1

in paragraph (b)(3)(i) of this section except that B elected to purchase an annuity that pays over B's lifetime with a 15-year certain period starting in the calendar year following the calendar year of A's death. Because B died after the effective date of section 401(a)(9)(H), the rules of section 401(a)(9)(H)(iii) apply, and accordingly, the annuity may not provide distributions any later than the end of 2034.

(c)

Required and optional plan provisions

—(1)

Required provisions.

In order to satisfy section 401(a)(9), a plan must include the provisions described in this paragraph (c)(1) reflecting section 401(a)(9). First, a plan generally must set forth the statutory rules of section 401(a)(9), including the incidental death benefit requirement in section 401(a)(9)(G). Second, a plan must provide that distributions will be made in accordance with this section and §§ 1.401(a)(9)-2 through 1.401(a)(9)-9. A plan document also must provide that the provisions reflecting section 401(a)(9) override any distribution options in a plan inconsistent with section 401(a)(9). A plan also must include any other provisions reflecting section 401(a)(9) that are prescribed by the Commissioner in revenue rulings, notices, and other guidance published in the Internal Revenue Bulletin. See § 601.601(d) of this chapter.

(2)

Optional provisions.

A plan may also include optional provisions governing plan distributions that do not conflict with section 401(a)(9). For example, a defined benefit plan may include a provision described in § 1.401(a)(9)-3(b)(4)(ii) (requiring that the 5-year rule apply to an employee who has a designated beneficiary). Similarly, a defined contribution plan may provide for an election by an eligible designated beneficiary as described in § 1.401(a)(9)-3(c)(5)(iii).

(d)

Regulatory effective date

—Thi

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