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Safe Harbor Plan 401(k) Plan - Amend to Change Sponsor Address


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Plan sponsor had an address change in 2013. Plan document was not amended. Since we can't amend a S/H 401(k) Plan mid-year, we will probably just wait until the restatement to change the address in the document (adoption agreement).

How should the notice to participants be handled? The address is in the SPD, so technically, an SMM would be required. Can an SMM be prepared without a plan amendment? Or is it even an issue at this point?

QPA, QKA

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Mmmm, well, I guess I'll just say that I wouldn't hesitate to amend a SH plan for a change of address. Not amending doesn't change the fact that they have a new address. Is it urgent? Not really. But I'd probably have done it by now, if it was effective in 2013. FWIW, if the address is in the adoption agreement, then I'd argue that an amendment is in fact needed.

Ed Snyder

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Let's be real here folks. Anyone wish to venture a guess as to the consequences of not amending to reflect the new address? There aren't any! (I am talking about the plan document/adoption agreement, not the SPD.)

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at the 2012 ASPPA Conference Q and A 40 a similar question was asked

The fiduciaries of a safe harbor 401(k) plan decide to
change the trustee during the plan year. An amendment is
adopted to reflect the change in trustee. Is this amendment
permissible?

asppa: Yes, you could amend

IRS response: Agreed

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post-12814-0-35069600-1401370481.gif

At another session at the 2012 annual conference, Sal stated that they never said you couldn't amend a safe harbor 401(k) mid-year to change things like the employer's address, phone, etc. and to think they did is just silly. Then, ASPPA GAC sent a comment letter in October 2013 asking the IRS to let us know if it is ok to amend a safe harbor plan mid-year to update the employer's address, phone number and Trustees. ASPPA also recently requested IRS guidance on whether an amendment mid-year to change the definition of spouse to comply with the Windsor decision was allowed mid-year for safe harbor plans. Given that the word "spouse" does not appear anywhere in 1.401(k)-3 or 1.401(m)-3, I put this request in the same category as ASPPA's request for the IRS to specifically bless amendments to update the employer's address or phone number. I agree with a co-worker who pointed out that controversy fills conference seats.

<Rant mode off>

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I still don't understand why anyone would bother to amend an adoption agreement to change the employer's address, unless you were making other (substantive) changes at the same time. Is there a risk that your recordkeeper/TPA will fire you if you don't? Each time a document is put in a prototype provider's hands to make a change there is a risk (in some cases greater than others) that it will mess something up in the document, therefore I advise my clients to review the entire adoption agreement each time a change is made. If the provider allows stand-alone amendments rather than a complete restatement, that eliminates the "mess up" risk, but it means that you end up with an unwieldy set of documents.

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jpod, it sounds like you need to find someone else to do your documents and amendments.

Going forward, address changes should be easier. Our newly approved VS documents specifically say that section 1, the basic employer information, can be updated without amending and without affecting reliance on the opinion letter.

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Nobody does my documents. I am talking about clients who use VS or prototype documents provided by the largest providers (think "F" for example). Every change is a major undertakingn and frought with risk that something will get changed unintentionally. Happens quite frequently.

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