I just read in the October issue of the 401(k) Advisor in the article titled "Last opportunity to change 401(k) testing," that "Beginning in years after the date when the GUST remedial amendment period ends, plans are now required to identify the testing period prior to the start of the plan year."

I was under the impression no guidance was issued in the proposed 401(k) regs regarding the timing of the amendment (or in Notice 98-1).

Also, if I remember correctly, it was mentioned at the October ASPA conference, the IRS commented at the summer conference it would be appropriate to amend the testing method by the end of the plan year in which the change would be effective.

Does anyone know if there is anything written which would support either the position in the 401(k) Advisor or the IRS comments at the ASPA summer conference?

There is nothing in writing on this.

Here are your 3 choices:

1. The amendment must be made before the beginning of the year to which it applies.

2. The amendment must be made before the end of the year to which it applies.

3. The amendment must be made by the deadline for running the test for the applicable year (i.e., 12 months after the end of the plan year).

At one point, the IRS informally stated 1 was the right answer b/c of anti-cut back issues. Personally, I don't agree with that. Possibly not everyone at the IRS agrees with that as well.

Maybe this is one area where we don't want any IRS guidance. It's open to a reasonable interpretation and I can live with option 3.