Notice 2014-37 - Q&A clarifying effects of same-sex marriage on mid-year amendment to retirement plan 

May 15: The IRS today released an advance copy of Notice 2014-37 that contains guidance—in a question and answer (Q&A) format—concerning the effects of the Windsor decision (same-sex marriage) on a mid-year amendment to either a section 401(k) safe harbor plan or section 401(m) safe harbor plan.

Read text of Notice 2014-37 [PDF 13 KB]


In early April 2014, the IRS issued Notice 2014-19 [PDF 24 KB] providing—in Q&A format—guidance concerning application of the U.S. Supreme Court’s decision in United States v. Windsor and of the IRS’s prior guidance in Rev. Rul. 2013-17 on application of federal tax laws on qualified retirement plans relating to married same-sex individuals / participants.

With Notice 2014-19, the IRS explained how the Windsor decision and Rev. Rul. 2013-17 affect the application of the federal tax rules for qualified retirement plans through a series of Q&As.

Notice 2014-37

Following the issuance of Notice 2014-19, the IRS was asked whether a section 401(k) or (m) safe harbor plan may adopt a mid-year amendment pursuant to Q&A-8 of Notice 2014-19 (i.e., the Q&A addressing the deadline for adopting a plan amendment). Generally, safe harbor 401(k) and (m) plan provisions must be adopted before the beginning of the plan year and can only be amended in very limited circumstances.

Notice 2014-37 answers that a sponsor of a section 401(k) or (m) safe harbor plan may adopt a mid-year amendment pursuant to Q&A-8 of Notice 2014-19, and the plan will not fail to satisfy the requirements to be a section 401(k) or (m) safe harbor plan merely because the plan sponsor adopts a mid-year amendment pursuant to Q&A-8 of Notice 2014-19.

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