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Failure to communicate existence of plan feature


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A DB Plan failed to publicize a retirement option under the plan.

It seems like this is an operational failure under EPCRS. I looked through EPCRS several times but couldn't find anything that speaks to this directly.

Have you run into something similar? Any help would be much appreciated.

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Probably not in EPCRS because that's an IRS program. Disclosure is a Title I issue under jurisdiction of DoL, not a tax qualification under IRS jurisdiction.

John Simmons

johnsimmonslaw@gmail.com

Note to Readers: For you, I'm a stranger posting on a bulletin board. Posts here should not be given the same weight as personalized advice from a professional who knows or can learn all the facts of your situation.

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  • 2 years later...

I ran across a similar issue today, so I'm bumping this thread.

It seems to me there are two problems:

(1) Failure to disclose in SPD, as mentioned by J Simmons. There's no penalty for this and no DOL program to correct it. The solutiion is to update the SPD or provide an SMM and move on.

(2) Failure to administer the plan in accordance with the written document. Presumably distribution packets failed to communicate the existence of an optional form of benefit payment. Failure to follow the plan document is regarded by the IRS as a potential qualification failure and can be corrected following the EPCRS. However, I don't see that there is concrete correction action that one can take because it's impossible to identify which participants if any would have elected the optional form of benefit payment if it had been properly communicated. I think the correction is to just fix it prospectively, starting to communicate it on a going forward basis only.

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How does one retroactively ring a bell that never rang? EPCRS has a metaphysical answer for when it was the 401k elective deferral opportunity in the plan that was not advertised to eligible employees, and then there's the interim document and restatement failures for which the IRS will turn a blind eye for a fee. But I don't know how you 'restore' a retirement option retroactively, as the OP mentioned.

John Simmons

johnsimmonslaw@gmail.com

Note to Readers: For you, I'm a stranger posting on a bulletin board. Posts here should not be given the same weight as personalized advice from a professional who knows or can learn all the facts of your situation.

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