EGTRRA Restatement

[oldman]

What are the ramifications of a governmental entity not adopting an EGTRRA compliant 401(a) document by January 31, 2011? Would they be considered a nonamender and remedy the plan defect by submitting an EPCRS filing?

[John Feldt ERPA CPC QPA]

You do not have to restate the plan, but if you wanted to obtain an IRS Determination Letter, the IRS generally requires a restated document (basically putting all of the amendments into a single document based on the applicable cumulative list). Your deadline to restate and submit the application to the IRS for their determination was January 31, 2011 (using the one-time cycle E filing option). The normal filing cycle is C for government plans, which comes up again starting February 1, 2013 with a January 31, 2014 deadline.

By filing for a Determination Letter, the IRS reviews the plan language and if anything is found, you generally have the ability to retroactively fix the problem.

If you choose not to get a Determination Letter, you generally do not have the ability to fix the plan in a retroactive manner, and the plan's language is open for scrutiny if the IRS examines (audits) the plan. Some would say that is a risk not worth taking advising that a Determination Letter request is a "must", but the advice on this varies widely for governmental plans.

Regardless of whether or not you ask for a Determination Letter, you are required to keep the plan up-to-date with amendments required for law changes and any other applicable regulations and/or guidance as it applies to your plan. The deadline for each of those items vary based on the law and/or guidance. For example, I think a government plan is required to adopt provisions to comply with the HEART Act by the end of their 2012 plan year. For another example, if the plan had timely adopted EGTRRA language with an amendment, and that language has no mistakes, then that plan language is compliant even if you did not restate the plan document for EGTRRA.

I hope that the above is accurate and that it helps!

[oldman]

John - Thanks for the feedback. I agree that at a minimum the plan sponsor needs to adopt an EGTRRA compliant document inclusive of final 415 regulations. Plan will also need to be updated byt he end of the 2011 plan year to comply with PPA.