Rev. Proc. 2000-27 provides that the remedial amendment period for a government plan expires as follows:

.01 The remedial amendment period for governmental plans, as defined in sec. 414(d), is extended to the later of (i) the last day of the first plan year beginning on or after January 1, 2001, or (ii) the last day of the first plan year beginning on or after the "2000 legislative date" (that is, the 90th day after the opening of the first legislative session beginning after December 31, 1999, of the governing body with authority to amend the plan, if that body does not meet continuously).

Technically the "2000 legislative date" would allow calendar year state plans to amend their plan no later than the end of 2002 if a legislature did not meet in 2000, but met in 2001. However, I do not know how that exception has been interpreted. For example, is it broadly interpreted to allow an extended date for all plans created by state law in which the state legislature does not meet continuously. Or is there also a requirement that in order for this exception to apply that the state plan must be unable to be amended except by act of the legislature?

Would it matter if the state agency that has administers the plan has the express or implied authority to amend the plan in matters that don't affect substantive rights of participants?

I seriously doubt that this has ever gotten an official IRS interpretation, given that few governmental plans are ever audited. However, I would tend to believe that it would have to be interpreted to allow the delay in amendment for all plans that could be amended by a legislature, whether or not they could also be amended by some other body. The reason for this is twofold. First, in many instances a nonlegislative authority may have broad but not complete rule-making authority, or the extent that of the body's rule-making authority may not be clear. Thus, there would need to be some flexibility to allow that body to defer to the legislature, even if in theory it might be able to make the amendments on its own. Second, in some instances, there is more than one possible way of implementing GUST provisions, and each might have different cost implications. Thus, a body that had authority to amend the plan might nevertheless want to leave such policy decisions to the legislature.

Anyone else have any thoughts on this?