Signature on Board Resolution instead of Plan Adoption Agreement

[Jerry Erisa]

What does one suggest when there is a prospect with a Board Resolution specifically authorizing an EGTRRA Restatement, but the only signature/date is on the Board Resolution,.. not the four corners of the EGTRRA Adoption Agreement?

Thanks for any input!

[ETA Consulting LLC]

I've seen it done before. In those instances, the Resolution specifically references the document as an appendix and states that it is adopted. I don't recall it being an adoption agreement, but a mass submitter document. At the end of the day, it should depend on the wording specifically 'adopting' the provisions of the adoption agreement and trustee agreement.

Good Luck!

[QDROphile]

Agree. I depends on what the resolution says.

[Bird]

I was just at an ASPPA seminar and an attorney in the audience stated that a board action taken on a specific date does not need a document with that date on it - e.g. the board meets on Sept 15, and the secretary writes up the minutes on Oct 31, everything is considered to be "done" on Sept 15 (at least in Pennsylvania). The implication was that that is effectively the signing date of a document that was approved on Sept 15.

Now, I'm not a lawyer so I don't necessarily understand all the subleties of the issue, but as noted above, it may depend on what the resolution says. If it says "we authorize the restatement of the plan" then I think maybe that's not enough - it sounds to me like that requires some additional action, the actual restatement - heck, maybe the plan isn't even written at that point? If it says "we approve of the plan presented and hereby adopt this restatement" then that sounds a lot better.

[jpod]

I would check to see if the Adoption Agreement (or the BPD) says something like "no amendment is valid unless a new Adoption Agreement is signed by the Employer." I don't think that would be fatal (I agree with QDRO above), but it's a possible headache.

[QDROphile]

If the plna itself speaks to amendment procedure in detail, then terms of the plan must be followed to that level of detail. Most prototypes simply say that the employer may amend the plan. That is not very restrictive and the lack of detailed guidance is what causes questions, especially for those not familiar with corporate and agency law.

[EBECatty]

We've had some luck carrying over certain information from a resolution to prove the status of the plan document. In a recent DL process, we had a signed but undated GUST adoption agreement the IRS challenged as untimely. We used the signed/dated resolution approving the GUST restatement as proof of its timely adoption, even though the date wasn't on the adoption agreement itself.

Not sure about carrying over a signature and date, but it's definitely worth a shot.

[mbozek]

If the plan document requires that that plan or amendments are to be adopted by the employer and the employer conducts its activity through a duly constituted board of directors then all resolutions adopted by the board are considered to be actions of the employer. The board can delegate certain acts to a specific board member or even the president or another officer to act on behalf of the board. Bylaws may also delegate authority to act on behalf of the corporation that adopted the plan. Sometime IRS agents need to be educated on authority of a board or a corporate officer to act officer to act on behalf of an employer. The effective date is the date of the of the board resolution or date officer signs document.

[Bird]

The effective date is the date of the of the board resolution or date officer signs document.

But which? That's the whole point of this thread.