2007 datair amendment signed late

[Guest jc1457]

Hi,

We have a client who is on the datair volume submitter plan document. They are a calander year plan. The client signed their 2007 amendments on 2/20/09. At the time, I thought this was correct because 415 would have come into effect on 1/1/2008. For this client, we had found some other amendments that were signed late and had filed under vcp to correct those - but this 2007 amendment was not included in vcp. Datair says that the 2007 amendment should have been signed by 12/31/2007 because it included wording to comply with the Heinz Act 411-d regarding vesting.

So now the plan is being audited by the IRS. I am stressed that this 2007 amendment will cause problems. Can anyone give their thoughts on wether this should pose a problem. I am going to argue that there is anti cutback wording in the document that would protect the vesting issue.

Thanks for any help.

[Guest TPANY]

I think your client should be fine in regards to the 2007 Interim Amendment based on the information you provided and the instructions Datair released in November 2007:

"For volume submitter plans, all Employers must sign the amendment because DATAIR is not able to adopt the amendment on behalf of all adopting Employers.

• If the default provisions of the amendment are accepted, then the amendment must be signed by the due date, including extensions, for filing the Employer’s income tax return for the Employer’s taxable year that includes the first day of the plan year in which the amendment is effective.

• If different options are selected, (that is, by placing an "X" in a box in the Adoption Section located at the end of the Interim Amendment), then the Employer must sign the amendment by the last day of the 2007 plan year.”

The majority of our clients using the Datair VS document accepted all of the default provision of the 2007 Interim Amendment with the effective date of 1/1/08. Since there was no reference of section 411 in the adoption section, it would seem to me that your client would have done the same. If your client’s amendment effective date was also 1/1/08, the February 20, 2009 adoption date would have been before the "Employer's income tax return for the Employer’s taxable year that includes the first day of the plan year in which the amendment is effective."

[Guest jc1457]

Hi,

We have a client who is on the datair volume submitter plan document. They are a calander year plan. The client signed their 2007 amendments on 2/20/09. At the time, I thought this was correct because 415 would have come into effect on 1/1/2008. For this client, we had found some other amendments that were signed late and had filed under vcp to correct those - but this 2007 amendment was not included in vcp. Datair says that the 2007 amendment should have been signed by 12/31/2007 because it included wording to comply with the Heinz Act 411-d regarding vesting.

So now the plan is being audited by the IRS. I am stressed that this 2007 amendment will cause problems. Can anyone give their thoughts on wether this should pose a problem. I am going to argue that there is anti cutback wording in the document that would protect the vesting issue.

Thanks for any help.

Thank you so much. I'll sleep better tonight. Thank you again, I really appreciate it.